CASE STUDY #6: Non-Resident Alien Spouse
Married Couple, Al and Janice, with no children. Al is a U.S. Citizen (or a resident alien) and Janice is a non-resident alien residing abroad in a non-community property country.
Filing Status Janice – Since Janice is a non-resident alien, she does not have a U.S. filing requirement, unless she elects to file a joint return with Al as discussed under Al’s filing options below.
Filing Status Al – Since Al is married, he must either file jointly with Janice or file as married separate. Al has the following filing options:
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Married separate, or,
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Married Joint., However, to file married joint he and Janice must make a joint election to treat Janice as a resident alien (Code Sec. 6013(g)(1)). In so doing, both spouses must agree to subject their worldwide income for the taxable year to U.S. taxation (Code Sec. 6013(g); Code Sec. 6013(h)). One party must have been, at the close of the taxable year for which the election was made, a nonresident alien individual married to a citizen or resident of the United States (Code Sec. 6013(g)(2)). An ITIN will be required for Janice (Form W-7).
“ Variation: U.S. Citizen Passes Away – Al is a U.S. Citizen married to a non-resident alien. Al passes away during the year. The filing options for Al in his year of death are the same as if he were alive. However, the executor for Al’s estate is the one that acts on Al’s behalf, and if the executor and Janice both agree, she and Al can file married filing jointly and include their worldwide income. The other option is married filing separately. ”
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