Married Filing Separate Returns in a Community Property State

The 9 Community Property States of the U.S.: Washington, Idaho, Nevada, California, Arizona, New Mexico, Texas and Louisiana. Married couples who live in community property states jointly own their marital property, assets, and income.

The Balance / Julie Bang

Married couples usually come out ahead if they file jointly. But there may be certain situations when you want to file separately, and this can be more complicated if you live in a community property state. We'll walk through what you need to know to make sure your taxes are filed correctly.

Key Takeaways

  • If you're married and want to file separately in a community property state, you'll need to analyze your joint income and expenses to figure out how much to claim on your return.
  • You must be contractually liable for any deduction you want to claim on your separate return.
  • You and your spouse can't both claim the same dependent in the same year.
  • You may want to see a tax professional for help.

What Is a Community Property State?

Married couples who live in community property states jointly own their marital property, assets, and income. Your spouse may have as much of a claim as you do on your income, for example. Likewise, your spouse is legally obligated to repay a $100,000 debt even if you contracted for it in your sole name. Your spouse jointly owns the property if you buy a $350,000 home, even if you title it in your name alone.

Needless to say, these rules can complicate things at tax time if you don't file a joint married return.

Which States Are Community Property States?

There are only nine community property states as of 2022:

  • Arizona
  • California
  • Idaho
  • Louisiana
  • Nevada
  • New Mexico
  • Texas
  • Washington
  • Wisconsin

Alaska, Tennessee, and South Dakota are hybrids. You can elect to treat your assets and debts as community property in these states by signing a joint agreement to do so.

There are slight variances in the laws from state to state. The IRS defers to state law in this situation. Married couples must follow their specific state's rules for community property at tax time.

Separate vs. Married Returns

Filing separate married returns forces each spouse to analyze their income and expenses to figure out how much belongs to the marital community and how much, if any, belongs to each spouse separately. Just as income is considered to be earned by both spouses equally, community deductions are owned by each spouse equally.

While joint returns may be simpler and open you up for more tax breaks, one downside to filing a joint return is that the IRS can and will hold both spouses "jointly and severally liable" for any errors or omissions on the return. This means that you're just as responsible as your spouse is if they intentionally "goof" when reporting certain information. And the IRS can collect the full tax due on the return from either of you.

Community and Separate Income

The general rule when preparing a separate tax return is that spouses must report half of their community income on each return, as well as all their separate income. This would generally be income derived from premarital investments or assets.

Spouses would each claim half of their community deductions plus all of their separate deductions.

Suppose you purchased a home years before you were married. That would be your separate property, but if you took any actions to "commingle" it, the home could be considered community property. Commingling might involve making mortgage or property tax payments on it with money earned after the date of the marriage. That money would have been community property, so you've effectively erased the separate property status of the home by adding community money.

If you decide to rent the property out while you're married, the rental income would become community property in Texas, Wisconsin, Idaho, and Louisiana , even if you didn't commingle the asset. It might be your separate, premarital property in other states, but the income it earned while you were married would be divided between you and your spouse if you file separate married tax returns.

Community Property Deductions

The passage of the Tax Cuts and Jobs Act (TCJA) more or less doubled the standard deduction when it went into effect in 2018. Many taxpayers find that the standard deduction they're entitled to is more than all of their itemized deductions added together, especially because the TCJA also places restrictions on some itemized deductions.

If you do decide to itemize, figuring out who gets deductions that are related to assets in a community property state can be tricky. Maybe your home is jointly owned. Maybe you want to claim the mortgage insurance deduction, but you're filing separate married returns. Can you just split the deduction between the two of you? You can, if both of your Social Security numbers appear on the Form 1098 you received from your lender. You must be contractually liable for any deduction you want to claim on your separate return.

Both you and your spouse must itemize your deductions if you file separate married returns. Federal tax law prohibits one spouse from itemizing while the other claims the standard deduction, even if you don't live in a community property state.

Claiming Your Dependents

You and your spouse can't both claim the same dependents if you have children unless you file a joint married tax return. Each dependent can only be claimed by one taxpayer per year.


You can "split" your dependents at tax time if you have more than one child. For instance, you could claim your son, and your spouse could claim your daughter, but only one spouse could claim a third child if you have three children.

Filing separate married returns can also disqualify you from claiming certain tax breaks, including these:

  • Earned income tax credit
  • Child and dependent care tax credit
  • Student loan interest deduction
  • American opportunity tax credit
  • Lifetime learning tax credit
  • Adoption tax credit

Special rules apply to the child and dependent care tax credit for spouses who live separately.

You Might Want to Get Professional Help

The IRS offers guidance for spouses in community property states in Publication 555. It includes a special worksheet in Form 8958. The IRS cautions that you might want to consult with a tax professional as you prepare your separate tax returns. This is particularly wise if you own income-producing property or if you're thinking that you might want to itemize. A professional will probably want to run your tax returns both ways, assessing your tax liability or refund if you file jointly versus filing separate returns.

Frequently Asked Questions (FAQs)

What is community property?

Community property laws vary in the nine states that use them. Generally, any property acquired while a couple is married is jointly owned by both partners. The state considers the assets to be equally owned by both spouses even if only one partner is named on the deed or title.

What happens to community property when one spouse dies?

You're free to leave your half of the community property to whomever you wish when you die, but the implications vary a bit by state law. In some states, you can add the right to survivorship to your half of the property if you want to ensure that it all goes to your spouse without the trouble of probate proceedings. That would automatically pass your portion to your spouse.

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  1. IRS. “Publication 555, Community Property,” Page 2.

  2. Justia. “Sec. 34.77.030. Classification of Property of Spouses.”

  3. IRS. “Publication 555, Community Property,” Pages 10-11.

  4. IRS. “25.18.1 Basic Principles of Community Property Law: Tax Assessment and Collection Under Community Property Laws.”

  5. IRS. “Publication 555, Community Property,” Pages 5-7.

  6. IRS. "IRS. “Publication 555, Community Property.” Page 4.

  7. IRS. “Publication 5307, Tax Reform Basics for Individuals and Families,” Page 4.

  8. IRS. “Topic No. 501 Should I Itemize?

  9. IRS. “Qualifying Child of More Than One Person.”

  10. "Estate Planning in Community Property States."

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