My fiancee and I are unmarried and filing separately. Can each of us contribute 5k (10k total) for dependent care FSA or 5k total for household?

[doublea074]

My fiancee and I are not married, living together, and filing separately. We had a baby this year and each of us are contributing to a daycare FSA on our own. The rules make is clear if we're single parents or married, but it's not clear in our situation.

Since we're filing separately and not married, can we each contribute 5k (10k total) to our daycare FSAs or are we still limited to the 2.5k each (5k total) as a household?

[Critter]

Ok ...  you both "can"  max the limit HOWEVER the child and all child related credits can ONLY be claimed on ONE tax return .... SO....  the person who did NOT claim the child will have an excess contribution which will be added back into the wages on the tax return.   So although you "can" both contribute it will only BENEFIT one of you. 

[Anonymous]

only one of you can claim the child as a dependent which normally would be the custodial parent.

you apparently has no qualifying individual and thus no qualifying expenses so the $5,000 would end up be included in your  taxable wages if not forfeited or allowed as a carryover to be used in 2020 during the grace period - employer plans vary on this .  any amount spent on nonqualifying expenses would end up being taxable wages.   

[Carl]

I just want to contribute some clarification on terminology here.

Since we're filing separately and not married,

Since you are both not married to either other or anyone else, you are not in any way, form or fashion "filing separately". You are both filing single. Period.

Only one of you can claim the child in a given tax year. Period.  I would recommend the one with the higher income *IF* they qualify as the custodial parent as defined by the IRS (Not as defined by a court.)

Can each of us contribute 5k (10k total) for dependent care FSA or 5k total for household?

You can. but I *highly * discourage that because one of you *will* lose on that deal. The only one that should be contributing to an FSA for the 2019 tax season, should be the one that will qualify as the custodial parent and *will* be claiming the child as a dependent on their tax return. That is the only tax filer that will see any benifit from doing this.

Now you can switch each tax year. But I recommend the higher wage earner contribute to an FSA and claim the dependent *IF* that higher wage earner qualifies as the custodial parent *as* *defined* *by* *the* *IRS*.

 - Custodial parent: This is the parent with whom the child lived for *more* than 182 nights of the tax year. The nights do not have to be consecutive. Temporary absences such as hospital stays, school, night at friend's house also count, provided the child returns to the same household they were at before the temporary absence. In the case where a separation of the parents occured during the tax year, then the custodial parent is the one with whom the child lived the most nights of the year.

 - Non Custodail parent: This is the parent that does not meet the criteria to qualify as the custodial parent.