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Married Gay and Lesbian Couples Can File as Married in New York State

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Updated July 02, 2013
Update: Gay and lesbian spouses can file as married in the state of New York. Lawfully married couples in New York state (whether they were married in New York or elsewhere) can file their state income tax return using either the married filing jointly or married filing separately filing status. Same-gendered couples can also file their federal tax return using one of the two married filing statuses since the Supreme Court ruled that section 3 of the Defense of Marriage Act was unconstitutional in United States v. Windsor. Previously, same-sex couples were required to filed using one of the non-married filing statuses, single or head of household.

The New York Department of Taxation and Finance issued guidance on July 29, 2011, instructed married couples to file their New York state tax returns using one of the married filing status, even if that marriage is not recognized under federal law. (TSB-M-11(8)C, (8)I, (7)M, (1)MCTMT, (1)R, (12)S, The Marriage Equality Act.)

Filing Status Options for New York Gay Married Couples

Married couples in New York can file their returns jointly (using the married filing joint filing status) or separately (using the married filing separate status). At the time that New York legalized gay marriage, the IRS did not recognize the marriage for federal tax purposes. At the time, the Department of Taxation and Finance advised, "You must file your New York personal income tax return(s) using a married filing status even though your marital status isn't recognized for federal purposes. Because the law only applies starting for tax year 2011, you can't amend a prior year return or file a 2010 return that is on extension using a married filing status."

In United States v. Windsor, the Supreme Court ruled that section 3 of the Defense of Marriage Act was unconstitutional. Following that decision, the IRS must now recognize legally married same-sex couples. Same-sex married couples are now required to file their federal tax returns as married. There are two filing status options: to file as married filing jointly or as married filing separately.

Couples may want to review their previously filed federal returns to determine if they overpaid their federal tax because the IRS required the spouses to file as if they were unmarried.

Spouses May Want to Review their Withholding and Estimated Taxes

Newly married couples may want to review their payroll withholding or estimated tax calculations to take into account their newly married status. Spouses can file a new Form IT-2104 with their employer to switch to the married withholding rates. Spouses who are currently taxed on the value of health insurance benefits provided to their partner can now receive those benefits exempt from New York income tax withholding (although the health insurance benefits will still be taxable for federal purposes).

New York is one of several states that allows gay couples to file as married.

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