MFJ couple (both over 65) died in same year.

[bcobbny]

I have a client couple (both over 65 and married after the deaths of previous spouses), for whom I have prepared MFJ returns for a number of years. In 2007 the wife died in Jan and the husband died in Aug. The husband's son has advised me that he wants me to do his father's return and file separately. It is the son's understanding that the wife's family (from previous marriage) will handle her return and file separately. This seems to leave the situation of filing two MFS returns which will have to include 85% of SS in taxable income. If the filing status is determined at time of death then clearly the wife was married (died in Jan) but what about the husband? When he died the wife was already deceased. Can he use a filing status of single?

[erchess]

Their 07 return

can be joint unless the husband remarried after the death of his second wife. (Since he died in August of 07 he obviously did not remarry after his death and any plans he may have had to remarry are irrelevant.) However MFJ is an election that in this case is made or not made by their respective next of kin. As I am sure you know, he would have been her next of kin had he lived long enough to file for 07 and he could have elected to file jointly with her even if she in life had never been willing to file jointly with him.

If I were you I would ask the husband's son whether he is electing to file his Dad separately or is simply under the impression that the other side has so decided. If the former I would make sure he knows the financial consequences. If the latter, I would ask if he wants my help working things out with the other side.(Let me ask you this - can her return be completed without information that the preparer could most easily get from either you or the man's next of kin?) In cases like this a lot of children are either so well off in relation to their parent that the inheritance is peanuts anyway or they are so poor in relation to their parents that their inheritance is enormous anyway. Add that to the possibility that they always did resent the second marriage and you begin to understand the dynamics of the situation. I have even known couples in second marriages who filed separately and maintained their finances separately in order to keep peace with their children.

[Koss]

Remarriage

can be joint unless the husband remarried after the death of his second wife. (Since he died in August of 07 he obviously did not remarry after his death and any plans he may have had to remarry are irrelevant.) However MFJ is an election that in this case is made or not made by their respective next of kin. As I am sure you know, he would have been her next of kin had he lived long enough to file for 07 and he could have elected to file jointly with her even if she in life had never been willing to file jointly with him.

How could he "remarry after his death"?

I know there's something in Mark 12:18 about death and remarriage, but I don't think that's applicable here...

BMK

[Koss]

Filing Status

I have a client couple (both over 65 and married after the deaths of previous spouses), for whom I have prepared MFJ returns for a number of years. In 2007 the wife died in Jan and the husband died in Aug. The husband's son has advised me that he wants me to do his father's return and file separately. It is the son's understanding that the wife's family (from previous marriage) will handle her return and file separately. This seems to leave the situation of filing two MFS returns which will have to include 85% of SS in taxable income. If the filing status is determined at time of death then clearly the wife was married (died in Jan) but what about the husband? When he died the wife was already deceased. Can he use a filing status of single?

I agree with the comments made by erchess.

To answer your original question, NO. He cannot use the single filing status.

Pub. 17 says:

If your spouse died during the year, you are considered married for the whole year for filing status purposes.

As erchess stated, the only exception is when the taxpayer remarries before the end of the calendar year.

BMK

[oceanlovin'ea]

Family dynamics

It is unbelieveable how some families treat their parents with second marriages. I have a lovely lady that I have prepared her tax returns for around 20 years (started when I was at Block). It was a second marriage and they were so happy. They had accounts with each of their children that was funded with money they had before they married. Then they had their joint accounts.
His health deterriated and she cared for him until he died. Several months before his death, his son (who has plenty of money of his own) came to their house and demanded the money from the account that was his and his dads. Then as soon as his dad died he had all the mail changed to come to his house for any of his fathers accounts. He tried to squeeze every penny out of the widow he could, like reimbursement for some medical expense that was paid out of joint account. She just gave him what he wanted because she didn't want to see him ever again.
Changing the mail address meant the 1099-R came to him the next year. But I had written to him and told him when it came in, I would need it to prepare the tax return. Fortunately he did send it to me.
So you really do need to speak with both sides of the family and try to work out a favorable solution to this.

Linda F

[FEDUKE404]

My $0.02 worth

I did some looking around late last night, never came to a firm conclusion (call in the lawyers??), but since there are now a few responses here are my thoughts.

1 - I agree the surviving spouse cannot file as "single"
2 - There is always the possibility that neither party (executors) was aware of some of the "shoot yourself in the foot" tax issues related to MFS. The zero exclusion of any Soc Sec benefits is the major one.
3 - It might be possible to consider that the "tax year" actually ended upon the death of the second spouse. Since there could be no surviving spouse at that time, the election to file jointly might be simpler if the usual "filing status as of 12/31" limitation possibly could be construed to refer instead to the end of a tax year.
4 - In any case, the executors of the second spouse will be facing as estate tax return anyway, especially as related to any income post death, and part of their role is to prepare the "final" income tax return. It MAY be possible to file a MFJ joint return for both H/W if the parties are not at each other's throats. From a pure tax standpoint, MFJ is probably the best way to go anyway.
5 - I fully agree with some of the observations of Linda F. Heirs and $$$ frequently can create a horrendous situation, especially where past divorce/remarriage issues have occured. Another good reason to visit your lawyer and set up something that after your own demise will ensure your wishes are actually met.

An intriguing case.....find a good tax attorney!!.....and I will continue to follow this thread for further education.

FE