Can You Claim Your Unborn Baby as a Dependent on Your Tax Return?

How old does a baby have to be to claim on taxes?

Mother holding a newborn baby beside a window

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What is the latest date a child can be born in the tax year to qualify as your dependent for tax purposes? You might be surprised by the answer: It's Dec. 31. It's possible to claim your newborn as a dependent as long as it's documented as a live birth and they were born at any time during the tax year, even if it's 11:59 p.m. on the last day of the year.

You're out of luck if they wait until 12:01 a.m. on Jan. 1 to arrive, at least until you file that year's tax return. Because yes, your baby must be born to qualify. You can't claim an unborn least on your federal tax return. You can do so in at least one state beginning in 2023.

Key Takeaways

  • You can claim your child as your dependent if they were born at any time during the tax year, but some other rules can complicate the matter.
  • Your child must live with you for at least half the year or from their moment of birth if they're a newborn, but this includes time spent in the hospital.
  • The Internal Revenue Service (IRS) applies tiebreaker rules if both parents want to claim the baby, but they're not married, so they can't file a joint return.
  • Not all states follow federal rules for purposes of their own tax codes.

A Qualifying Child: The Residency Rule

The first rule for claiming a qualifying child as a dependent is that the child must live with you for more than half the tax year. This might seem to rule out your New Year's Eve baby, but the Internal Revenue Code (IRC) makes an exception for newborns.

The exception also applies when a child dies during the year. Children who are born or die during the tax year are considered to have lived with you at least half the year if your home was their home during their entire lifetime.


This rule also applies if the child lived with you all year except for any required hospital stay following their birth.

Your baby will meet the residency test because they will presumably have lived with you from their moment of birth. Even a stay in the hospital is considered to be living in your home.

But the situation changes if the child is placed in foster care or for adoption because they've left your care. Another exception would be if their other parent immediately takes custody of the baby and takes them home, and you don't also live with that parent. A whole additional batch of "tiebreaker" rules applies in this case.

The "Tiebreaker" Rules

The IRS provides detailed criteria for who gets to claim a child as a dependent when parents are divorced or separated. They're called "tiebreaker rules" because they often come into play when both parents want to claim their child. The IRC rule is that only one of you can do so.


These rules are something like a ladder. Parents must step from one rung to another until one of them qualifies.

The first step or requirement is that the parent with whom the child lived most during the tax year gets to claim the dependent. If a baby is born in November and goes straight home from the hospital with the other parent, that parent gets to claim the child because they lived with them the entire time they were alive.

But what if this is a gray area? What if the baby is born late on New Year's Eve, so it can't be determined who they lived with the longest? The parent with the higher adjusted gross income (AGI) is entitled to claim the child as a dependent in this case. It will come down to which of you earns more.

These rules assume that you're not married and living together. You can both effectively claim the child no matter when or what time they were born during the tax year if you're married, live with your spouse, and you file a joint return.

Other Tests

Your baby will also qualify as your dependent more or less by default under the remaining IRS rules for qualifying child dependents.

  • A dependent must be your son or daughter, a brother or sister, or a descendant of one of these individuals. You've got this one covered if you've just given birth.
  • The child must be younger than age 19 on the last day of the tax year, or age 24 if a full-time student. Your baby qualifies here, too.
  • The child cannot have provided more than half of their financial support for the year.

Does It Still Matter for Tax Year 2022?

You might have heard that having a dependent doesn't do you much good anymore, thanks to tax legislation passed by Congress in December 2017. The Tax Cuts and Jobs Act (TCJA) eliminated the personal exemption that used to be available for each of your dependents. You can no longer claim a personal exemption for your child on the 2022 tax return you'll file in 2023.

But the Earned Income Tax Credit, the Child Tax Credit, and the Child and Dependent Care Credit are all still alive and well. Having a dependent is critical to qualifying for each of them.

You can qualify for the Earned Income Tax Credit without a qualifying child, but the amount of your credit will be significantly less than what you could claim with one or more children.


Your dependent might help qualify you for the head of household filing status as well. This is an advantageous filing status if you and your baby's other parent aren't married and living together.

So, yes, having a dependent is still a good thing at tax time. And yes, your newborn will qualify you if you meet all these rules, even if your baby is born at the 11th hour of the year.

A 2023 Update

After the overturning of Roe v. Wade, Georgia's Department of Revenue announced that it will, in fact, allow individuals at least six weeks pregnant on or after July 20 through Dec. 31, 2022, to claim any "unborn child with a detectable heartbeat" as a dependent on their 2023 tax return. Unfortunately, you won't file this return until 2024.

Keep your eye on emerging legislation, both at the state and federal level, in 2023.

Frequently Asked Questions (FAQs)

What happens if more than one taxpayer submits a return claiming the same qualifying child?

You'll receive a notice from the IRS letting you know if more than one taxpayer submits a return claiming the same qualifying child. You'll have the opportunity to ensure your return was correct. You'll have to file an amended return and pay any taxes that are due if it wasn't.

What is the child tax credit?

The child tax credit is equal to $2,000 for each of your qualifying children under age 17 as of the last day of tax year 2022. Each child must have a Social Security number, and there are income restrictions. Your adjusted gross income (AGI) can't be more than $400,000 in 2022 if you're married and filing a joint return. Otherwise, the limit is $200,000. You can calculate and claim the credit by completing and filing IRS Form 8812 with your tax return.

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The Balance uses only high-quality sources, including peer-reviewed studies, to support the facts within our articles. Read our editorial process to learn more about how we fact-check and keep our content accurate, reliable, and trustworthy.
  1. IRS. "Publication 501: Dependents, Standard Deduction, and Filing Information."

  2. IRS. "Qualifying Child Rules."

  3. IRS. "Publication 5307: Tax Reform Basics for Individuals and Families." Page 7.

  4. Georgia Department of Revenue. "Guidance related to House Bill 481, Living Infants and Fairness Equality (LIFE) Act."

  5. IRS. "Schedule 8812 Credit for Qualifying Children and Other Dependents." Page 1.

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