I put $5k in a dependent care FSA for 2017 but my wife didn't make it back to work, does anyone have a legal suggestion to not totally lose the money?

[tcolo123]

My company gives a contribution to my dependent FSA for free (even if I do not make any contribution myself). 
What would then happen if I use those money even though my spouse does not work/does not find work?  

[xmasbaby0]

If you have FSA money and do not use the child care credit because one spouse did not work, then the FSA money which was pre-tax, just becomes taxable income.  You cannot get the child care credit unless both spouses worked and earned income.

[NCperson]

@tcolo123 @xmasbaby0 

just to close the loop on the question

1) the question was what happens to the money if @tcolo123 uses it and the spouse does not work? 

2) the answer responded to the question "what happens to the money if it is not used." 

I suspect the broader answer is that if it is not used as required by the rules (not used or not used when both spouses are working), it's taxable income.

[esajad]

Hi, What if I am on H1B visa and my wife is not authorized to work in the US. Can I use Dependent Care FSA or Healthcare FSA?

[NCperson]

@esajad - see these IRS documents: Appears there would be no issue on the HSA, but Child Care would be problematic.  

Child Care: 

page 9 on the left: 

https://www.irs.gov/pub/irs-pdf/p503.pdf

Generally, married couples must file a joint return to take the credit. However, if you are legally separated or living apart from your spouse, you may be able to file a separate return and still take the credit.

and page 4 on the right:

You Must Have Earned Income
To claim the credit, you (and your spouse if filing jointly) must have earned income during the year.

for the healthcare HSA: 

page 3 on the right: 

Qualifying for an HSA Contribution
To be an eligible individual and qualify for an HSA contribution, you must meet the following requirements.
• You are covered under a high deductible health plan
(HDHP), described later, on the first day of the month.
• You have no other health coverage except what is
permitted under Other health coverage, later.
• You aren’t enrolled in Medicare.
• You can’t be claimed as a dependent on someone
else’s 2021 tax return.