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William Perez

Filing Status for Widows and Widowers

By March 30, 2006

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Today's tax question comes from Charlie in Georgia. He asks, "My wife died last year. This year I was planning on filing as a Qualifying Widower, since I have a dependent. However, my tax preparer said I don't qualify because my son is a foster child. Can this be true? He's been our foster child for two years now."

Sadly, your tax preparer is right on this point. Last year, Congress changed the rules about dependents. They re-wrote the definition of a dependent. They actually made it easier for foster parents to claim foster children as dependents. Under the new rules, you can claim a foster child as a dependent if the child lived with you for more than half a year. Under the old rules, the foster child had to live with you for an entire year before you could claim the child as a dependent.

However, when Congress re-wrote the rules, they also slightly changed how foster children are treated for the Qualifying Widow or Widower filing status. Under the old rules, a foster child was considered a blood relation. That phrasing was dropped in the new rules.

Under the rules for Qualifying Widows and Widowers, a taxpayer must be able to claim a child who is related "by blood or adoption." Since the new rules for foster children dropped the blood relation phrasing, surviving spouses are no longer eligible for the Qualifying Widow/Widower filing status if their only dependent is a foster child.

The IRS has summarized this issue succintly in Publication 17. The IRS lists four criteria for being eligible for the Qualifying Widow/Widower filing status. The third criteria reads:

"You have a child or stepchild for whom you can claim an exemption. (This does not include a foster child.)"

Essential Resources:

P.S. I asked the IRS to clarify this issue. Here's the final answer I received from the IRS when I asked them about this issue:

"As to your query on qualifying widow(er) filing status, here is the answer:

Publications 17, 501, (and soon to be released 553) all essentially state that beginning in 2005, a foster child no longer qualifies a taxpayer to use the qualifying widow or widower filing status.

I have verified that the IRS publications are correct, based on a change in the law under the Working Families Tax Relief Act of 2004, (P.L. 108-311, Section 201).

Under Income Tax Regulation section 1.2-2(a)(ii) defining "surviving spouse," a taxpayer must maintain a home that is the principal place of abode of a dependent son or daughter or stepson or stepdaughter, who is related "by blood or adoption."

Under old IRC section 152(b)(2) before it was amended, the law stated that an individual's foster child was "treated as a child of such individual by blood."

After amending section 152, the language of the new law under section 152(f)(1)(C), defining an eligible foster child, the old language about blood relationship was dropped. The new law no longer states that a foster child shall be treated as related by blood to the taxpayer."

Source: IRS Media Relations

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Comments
April 18, 2007 at 5:20 pm
(1) Steve says:

This is crazy! My mother-in-law has been raising my nephew (her blood grandson) since birth. Her husband died in 2004, and therefore should have the ability to claim “qualifying widow with dependant” as she did in 2005! I think someone in congress or IRS wasn’t thinking (go figure) and ommited the qualifying dependants from head of household by mistake! How many grandparents on fixed incomes who have lost spouses and are raising their grandkids just lost a huge deduction??? Write your congressman!

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