Deceased ex spouse passed in 2021. Question about Dependent deduction

[Ginab5642]

Hi:  My ex husband suddenly passed in 2021. He would've taken our daughter as a deduction on his taxes this year, had he lived.  I took the deduction based on advice from an accountant.  Although daughter lives with me 98% of the time, our divorce decree (state of Mass) states that we alternate tax years.  Accountant states that the IRS law supersedes the state law/divorce decree and I have right to claim her.  Can someone tell me if I was given incorrect information?   Thank you so much! 

[macuser_22]

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@Ginab5642 wrote:

Hi:  My ex husband suddenly passed in 2021. He would've taken our daughter as a deduction on his taxes this year, had he lived.  I took the deduction based on advice from an accountant.  Although daughter lives with me 98% of the time, our divorce decree (state of Mass) states that we alternate tax years.  Accountant states that the IRS law supersedes the state law/divorce decree and I have right to claim her.  Can someone tell me if I was given incorrect information?   Thank you so much! 

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As usual it depends.   For him to claim, you must issue him  signed 8332 form regardless of the court order since the IRS does not go by court orders.    However, if you fail to issue the 8332 then you could be held in contempt of the court order.    Whether the court order is valid after death in the year of death is a legal question that we cannot answer.

You should consult your attorney for a legal opinion.

[Carl]

Accountant states that the IRS law supersedes the state law/divorce decree and I have right to claim her.

The accountant is correct. Since your dependent meets the IRS requirements to qualify as your dependent, you can claim her on your tax return. It doesn't matter what any divorce decree may say. Remember, the only entity that can over ride tax laws  (i.e. the IRS) is a federal judge. Since federal judges do not deal with divorce, separation or custody issues, I feel confident in stating that will never happen. What any lower level judge may have decreed, is not really enforceable below the federal level. (Though there are methods lower level judges can use to "make you" sign the 8332.) So if you have not signed an 8332 for tax year 2021, you most certainly can claim the dependent.

[Ginab5642]

Thank you very much for your reply. 

[Ginab5642]

Thank you! Very helpful!