After Stone v. Thompson abolished common-law marriage in South Carolina, what filing status can a common-law married couple use on their South Carolina income tax return?

Plain-English summary

South Carolina makes you use the same filing status on your state income tax return as on your federal return, and whether you count as "married" is decided by state law, not tax law. That rule collided with a 2019 South Carolina Supreme Court decision, and SC Revenue Ruling #21-3 explains how the two fit together.

The background. South Carolina historically recognized common-law marriage — a valid marriage formed without a ceremony or license, when two people mutually agree (expressly or by their conduct) to be married. In Stone v. Thompson, 428 S.C. 79 (2019), the Court abolished the ability to enter into a common-law marriage in South Carolina, but only prospectively — effective July 24, 2019. Marriages already formed before that date were not undone.

What that means for filing status turns on three situations:

• South Carolina common-law marriage formed BEFORE July 24, 2019. Still a valid marriage for federal and South Carolina income tax. The couple must file "married filing jointly" or "married filing separately." They cannot file as "single."
• On or after July 24, 2019. You can no longer create a common-law marriage in South Carolina. To file as married, a couple must obtain a marriage license and certificate (a ceremonial marriage).
• Common-law marriage formed in ANOTHER state. South Carolina continues to recognize it regardless of the date it was formed, once the couple establishes domicile in South Carolina or is required to file as a South Carolina nonresident. They must file married (jointly or separately), not single.

Timing of marital status. Whether you are married is generally determined at the end of the tax year. If one spouse dies during the year, status is fixed at the time of death. Someone legally separated under a divorce decree at year-end files as single unless they qualify for another status.

The ruling focuses on the single-vs-married question; it notes that some common-law spouses might also qualify for head of household or qualifying widow(er) status, but it does not analyze those.

What this means for you

Couples in a pre-July-2019 South Carolina common-law marriage

You are married for tax purposes and must file jointly or separately — filing as "single" is incorrect. This matters even if you never had a ceremony or license; the marriage was validly formed before the cutoff and remains valid.

Couples together since on or after July 24, 2019

Simply living together and holding yourselves out as married no longer creates a marriage in South Carolina. If you want to file as married, you need an actual marriage license and certificate.

Couples who common-law married in another state

If your common-law marriage was valid where it was formed, South Carolina honors it when you move here (or owe South Carolina nonresident tax) — no matter when it was formed. File as married.

Tax preparers and accountants

Because South Carolina ties filing status to federal status, and federal law defers to state law on whether a marriage exists, the date and place a common-law marriage was formed drive the answer. Document the couple's marital history when a "single vs. married" question arises for South Carolina returns.

Common questions

Q: Did Stone v. Thompson cancel existing common-law marriages?
A: No. The decision is prospective. Common-law marriages validly formed in South Carolina before July 24, 2019 remain valid, and those couples must file as married.

Q: Can a South Carolina couple still become common-law married today?
A: Not in South Carolina. Since July 24, 2019, a couple must get a marriage license and certificate to be married for South Carolina (and federal) tax purposes.

Q: We common-law married in another state years ago and just moved to South Carolina. How do we file?
A: South Carolina recognizes a valid out-of-state common-law marriage regardless of when it was formed. Once you are domiciled here (or must file as a South Carolina nonresident), you file as married — jointly or separately — not single.

Q: When is my marital status measured?
A: Generally at the end of the tax year, or at the time of a spouse's death if a spouse dies during the year. A person legally separated under a divorce decree at year-end files as single unless another status applies.

Citations and references

Statutes and authority:

• S.C. Code Ann. § 12-6-40(B) — federal income tax elections/definitions adopted by South Carolina automatically apply for South Carolina income tax
• S.C. Code Ann. § 12-6-5000 — additional filing-status rules for married individuals (separate/joint returns), depending in part on each spouse's residency
• Title 20, S.C. Code of Laws — marriage

Court decision and IRS guidance:

• Stone v. Thompson, 428 S.C. 79 (2019) — abolished common-law marriage in South Carolina prospectively, effective July 24, 2019
• Rev. Rul. 58-66, 1958-1 C.B. 60 — the IRS recognizes South Carolina marriages for federal income tax purposes

Source

• Landing page: SC Advisory Opinion Search
• Original PDF: RR21-3.pdf

Original ruling text

STATE OF SOUTH CAROLINA

DEPARTMENT OF REVENUE
300A Outlet Pointe Blvd., Columbia, South Carolina 29210
P.O. Box 125, Columbia, South Carolina 29214-0575

SC REVENUE RULING 21-3

SUBJECT:

Common-Law Marriage Tax Treatment and Permitted Filing Statuses in
Light of Stone v. Thompson
(Individual Income Tax)

EFFECTIVE DATE: Applies to all periods open under the statute, except as otherwise noted.
AUTHORITY:

S.C. Code Ann. Section 12-4-320 (2014)
S.C. Code Ann. Section 1-23-10(4) (2005)
SC Revenue Procedure #09-3

SCOPE:

The purpose of a Revenue Ruling is to provide guidance to the public and
Department personnel. It is an advisory opinion issued to apply principles
of tax law to a set of facts or general category of taxpayers. It is the
Department’s position until superseded or modified by a change in statute,
regulation, court decision, or another Department advisory opinion.

PURPOSE
The purpose of this advisory opinion is to provide guidance to individuals on permitted filing
statuses in light of the 2019 South Carolina Supreme Court decision to abolish the ability of
couples to enter into common-law marriages.
OVERVIEW OF FILING STATUS AND DETERMINING MARITAL STATUS
South Carolina requires a taxpayer to use the same filing status on his or her individual income
tax return as used on his or her federal individual income tax return. 1 The federal and South
Carolina filing statuses are:

1. Single
2. Married filing jointly
3. Married filing separately
   1

Code Section 12-6-40(B) provides that all elections for federal income tax purposes in connection with Internal
Revenue Code sections adopted by South Carolina automatically apply for South Carolina income tax purposes,
unless otherwise provided. See Internal Revenue Code Section, “Definitions and Special Rules” and Code Section
12-6-5000 concerning the filing of separate or joint returns by spouses.

4. Head of Household 2

5. Qualifying Widow or Widower 3
   In general, a person’s filing status depends on whether he or she is considered married or
   unmarried. State law (not federal law) governs whether two individuals are married. “Marriage”
   is the legal union between two people and can be a traditional ceremonial marriage 4 or a
   common-law marriage. A common-law marriage does not require a ceremony.
   A common-law marriage is formed when the parties contract to be married, either
   expressly or impliedly by circumstance. The key element in discerning whether
   parties are common-law married is mutual assent: each party must intend to be
   married to the other and understand the other’s intent. 5
   Whether an individual is married is determined at the end of the tax year. If one spouse dies
   before the end of the other’s tax year, the marital status is determined at the time of the spouse’s
   death. A person legally separated under a decree of divorce at the end of the tax year must use
   the filing status of single, unless the qualifications are met for another filing status.
   SC COMMON-LAW MARRIAGE – ABOLISHED PROSPECTIVELY IN 2019
   Effective July 24, 2019, the South Carolina Supreme Court abolished the ability of couples to
   enter into a common-law marriage in South Carolina. 6 The filing statuses 7 available for use by
   common-law married individuals on their South Carolina individual income tax returns are
   discussed below. 8
   Common-Law Marriage Established Prior to July 24, 2019. The marital status of individuals
   under state law is recognized for federal income tax purposes. 9 As such, a couple living in South
   Carolina in a common-law marriage established prior to July 24, 2019 is married for federal and
   South Carolina income tax purposes. Accordingly, such South Carolina couples will file their
   federal and South Carolina individual income tax returns using the filing status “married filing
   jointly” or “married filing separately.” They cannot file using the filing status “single.”

2

An individual may be able to choose head of household filing status instead of married filing separately if he or she
is considered unmarried because he or she lives apart from the spouse and meets certain other head of household
tests.
3
The year of death is the last year for which a surviving spouse can file jointly with a deceased spouse. The spouse
may be eligible to use the qualifying widow(er) status for two years following the year the spouse died, if the spouse
remains unmarried.
4
See Title 20 of SC Code of Laws.
5
Stone v. Thompson, 428 S.C. 79 (2019). (Internal citations omitted.)
6
Id.
7
Note: Although certain individuals who are or were in a common-law marriage may qualify to file as a “head of
household” or “qualifying widow(er)” these situations are not discussed in this ruling.
8
See Code Section 12-6-5000 for additional filing status rules applicable to married individuals on their South
Carolina individual income tax return. The permitted status depends, in part, on the residency status of each spouse
and their federal filing status, if they have one.
9
The Internal Revenue Service recognizes South Carolina marriages. Rev. Rul. 58-66, 1958-1 C.B. 60.

2

Inability to Enter into a Common Law Marriage on or after July 24, 2019. In Stone v.
Thompson, 10 the Court concluded that “parties may no longer enter into a valid marriage in
South Carolina without a license” on or after July 24, 2019. Accordingly, on or after July 24,
2019, unmarried South Carolina couples must obtain a marriage license and certificate to use the
filing status “married filing jointly” or “married filing separately” on their South Carolina and
federal individual income tax returns.
Common-Law Marriage Established in another State. Regardless of the date a couple enters into
a valid common-law marriage in another state, South Carolina continues to recognize the couple
as married when they establish their domicile in South Carolina or are required to file as a South
Carolina “nonresident.” They must use the filing status “married filing jointly” or “married filing
separately” on their South Carolina income tax return. They cannot file using the filing status
“single.”
SOUTH CAROLINA DEPARTMENT OF REVENUE

s/W. Hartley Powell
W. Hartley Powell, Director
February 1
, 2021
Columbia, South Carolina

10

428 S.C. 79, 82 (2019).

3