If your brother and his wife claimed themselves and their children you will not be able to claim their children. If they did not claim the kids then you can put them down as your dependents.
The bottom line is a dependent must be your “qualifying child” or “qualifying relative” and meet specific tests in order for you to claim them. The 5 tests that will qualify a child as a dependent are:
- Relationship: Must be your child, adopted child, foster-child, brother or sister, or a descendant of one of these (grand or nephew).
- Residence: Must have the same residence for more than half the year.
- Age: Must be under age 19 or under 24 and a full-time student for at least 5 months. They can be any age if they are totally and permanently disabled.
- Support: Must not have provided more than half of their own support during the year.
- Joint Support: The child cannot file a joint return for the year.
The 4 tests that will qualify a relative as a dependent are:
- Qualifying Child: They are not the “qualifying child” of another taxpayer or your “qualifying child.”
- Gross Income: The dependent being claimed earns less than $4,150 in 2018.
- Total Support: You provide more than half of the total support for the year.
- Member of Household or Relationship: The person (a friend, girlfriend, non-blood relative) must live with you all year as a member of your household or be related to you.
Many taxpayers are surprised to find they may be able to claim a boyfriend, girlfriend, domestic partner, or friend as a qualifying relative if:
- They are a member of your household the entire year.
- The relationship between you and the dependent does not violate the law, for example, you can not still be married to someone else. (Also, check your individual state law, as some states do not allow you to claim a boyfriend or girlfriend as a dependent even if your relationship doesn’t violate the law).
- You meet all the other criteria for “qualifying relatives” (gross income and support).
