Deceased husbands tax refund goes to his surviving spouse who owes a federal debt. What can be done to assure she gets refund.

[riellylashley]

Will injured or innocent spouse forms allow me to get his refund . he was not responsible for my debt he earned that money . he died and just because it goes to me now as surviving spouse I should get it because he earned that money not me and I need that money bad

[PhyllisG · Accepted solution]

Innocent spouse relief is for individuals who are no longer married and there was an understatement of tax on the return.  In other words, taxes were owing. You are entitled to a refund, therefore, the innocent spouse relief will not apply.

Injured spouse relief is claimed when there is a joint return filed, and the joint refund is offset against a debt that is owed by the other spouse. Because you are the liable spouse, you cannot  claim injured spouse relief. However, you can claim injured spouse relief on behalf of your deceased husband.

Internal Revenue Manual (IRM) 21.4.6.4.9.1(2) states that “[A] surviving spouse is entitled to file a claim and receive a refund on behalf of the deceased injured spouse even though the surviving spouse owes the obligation." 

Furthermore, Internal Revenue Code (IRC) section 6402(a) authorizes payment only to the person who had created the refund.  You indicated that your husband had earned the money.  Therefore, if the injured spouse relief is approved, then the check will be written in his name per Section 301.6402-2(f)(1) of the Regulations on Procedure and Administration. 

IRC section 6402 specifically states that the offset rules are inapplicable to the deceased injured spouse’s share of the joint overpayment. In other words, his refund will not be applied to your outstanding debt. However, you are expected to adhere to any will or probate stipulations because the check would be payable to him.

If you request that the check is issued in your name, then more than likely, the refund will offset against your outstanding federal debt.

[riellylashley]

Thanks . so what I need to do then is Amend the taxes right ? And file the injured spouse on behalf of my deceased husband and file as qualifying widow and request the check come back in his name ?

[riellylashley]

I efiled his taxes using TurboTax . and what about the state refund ? I should get that right ? Or if I amend will. I have to amend the state refund as well ?

[riellylashley]

I appreciate your help

[PhyllisG]

Injured Spouse Relief varies by each state.  You will have to conduct a search in your state's agency's website to determine if they have procedures for Injured Spouse Relief, and if they provide the necessary form.  

Whenever, you file an amended return (Form 1040X) for the federal, you must file an amended return for the state. However, there isn't a need to amend the return unless the refund is more or less, and/or you are filing a joint rather than a separate return.  You can manually prepare the Form 8379, Injured Spouse Allocation, and mail it to your area's Internal Revenue Service Campus.  

If you need to file an amended return, you can do so in TurboTax.  TurboTax will also prepare the Form 8379. Both forms cannot be electronically submitted; therefore, you will have to print and mail the return with the Form 8379 attached.  It can take 8-14 weeks before a decision is made regarding your injured spouse claim.

Please refer to the irs.gov website Form 8379 Instructions booklet for additional information.

[PhyllisG]

I forgot to mention that you can claim qualifying widower as long as you have a qualifying child. If you are not filing a married filing jointly return, then there isn't a need to claim injured spouse relief.

[riellylashley]

Thanks and there's not a child in the home so that's out. And I originally filed married jointly but we never did before this is the first time cause I don't work . I hope they consider letting me have my husbands refund. I'll call the irs tommorow and let them know I'll be sending in the injured spouse form. One more question please.
Will I be amending the original taxes by mailing them the injured spouse form ? Or will I leave it all as it is now and wait for their decision about the injured spouse form ? I'm just so confused . you've helped me so much thank you.