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Father of my children died, can I claim dependent of child he would have claimed

The father of my two children and I have a divorce decree stating that he claims my oldest child each year for taxes. I have full physical custody and we shared joint legal. Children spent no more than 4 nights a month with him each month. He never remarried. He did pay child support through the county. He unexpectedly passed away in January of 2025 before either of us had filed taxes.  

am I able to claim both my children on my taxes for the 2024 year? I am assuming his mom will be completing his 2024 taxes.

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3 Replies
DawnC
Employee Tax Expert

Father of my children died, can I claim dependent of child he would have claimed

Yes, as long as the children meet the requirements in the link below, you can claim them.   The divorce decree does not preclude you from claiming a qualifying dependent.  You can claim a child as a dependent if he or she is your qualifying child.  Generally, a child is the qualifying child of the custodial parent and the custodial parent may claim the child as a dependent.   

 

Who can I claim as my dependent?

 

Also, see the IRS examples in this link.  (Expand the 6th scenario, parents separated for 11 months)

 

I am sorry for your loss.

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Father of my children died, can I claim dependent of child he would have claimed

Will me claiming the child he normally claim then possibly effect how much he is owing with the 2024 tax year? If that makes sense?  I’m hesitant to claim our child he normally claimed as I don’t want his mom to have to pay in for taxes when I think he normally got a refund. Especially if he had is exemptions counting our child he normally claims. 

MonikaK1
Employee Tax Expert

Father of my children died, can I claim dependent of child he would have claimed

Yes, if you claim your oldest child and file your 2024 return, and then a final return is filed on behalf of your children's father for 2024, also claiming that child, then that second return will be rejected from e-filing, and removing the dependent may affect the refund or balance due on that return.  

 

The amount of difference to the tax owed with his final return would depend on the amount of his total income and other factors. When a second return is e-filed claiming the same dependent, the return is automatically rejected from e-filing. The IRS may send both claiming parties an audit letter requesting documentation to establish which taxpayer is entitled to the dependent.

 

As @DawnC advised above, and as shown in the IRS references she cited, you are entitled to claim your child who lived with you as a dependent regardless of the wording in the divorce decree. You would normally prepare IRS Form 8332 and provide it to the other parent in order to waive your right to claim your dependent.

 

See this TurboTax article for more information on duplicated dependents. The second taxpayer to claim the same dependent could file by mail to avoid the return being rejected from e-filing, but the IRS would still normally contact both taxpayers in order to determine which is entitled to the dependent.

 

@Dweste  

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