If you are a US expat married to a non-US person, can you file a joint US income tax return with your spouse?
In this blog, we dispel common myths surrounding the issue and explain the process for electing to file jointly with your non-US spouse and for revoking the election.
Common Mistakes When Filing with Your Non-US Spouse
US expats often mistakenly believe that they can file their tax returns using “single” status if they are married to a spouse who is a non-US person (more technically referred to as a nonresident alien). This is not correct given that the expat is legally married to another person.
Similarly, US expats often mistakenly believe that they can file using “married filing jointly” status when married to a non-US person. This is not correct as well.
In order to file jointly with a non-US spouse, the US Code and Treasury Regulations require the married couple to attach a statement (declaring that an election is being made) to the joint return for the first taxable year for which the election is to be in effect. The election is technically referred to as a 6013(g) election.
Consequences of Electing or Not Electing to File with Your Non-US Spouse
Filing jointly comes with a number of tax benefits such as lower tax rates and larger deductions. However, there is also a downside if you have a working spouse in that you will have to include your spouse’s worldwide income on your return as if your spouse is a US person, which can potentially lead to a higher tax bill.
Typically, if you choose not to make the election, you should file using the status of “married filing separately.” However, in some cases, if you have dependent children who are U.S. citizens and spent at least half of the year living with you, you can file using the status of Head of Household, which gives you access to certain deductions that are not eligible to those without dependent children.
Consulting with an experienced Expat Tax Professional prior to choosing your filing status is the best way to make an informed decision.
Terminating the Election to File with Your Non-US Spouse
A 6013(g) election is effective for the tax year of the election as well as all subsequent tax years unless the election terminates.
The election can terminate either by: (1) revocation, (2) death, or (3) legal separation.
In terms of revocation, either spouse can revoke the election. A revocation is effective as of a particular taxable year if it is filed on or before the last day prescribed for filing the tax return for that taxable year. However, the revocation is not final until that last day.
If a 6013(g) election is terminated, the couple can never again make the election, so careful consideration should be made prior to a revocation. Again, consulting with an Expat Tax Professional is a prudent way to ensure that you’re making the optimal decision.
