No and yes.
In this situation, only the spouse who claims the child as a dependent can use an FSA. The other spouse either forfeits the money, or, if the money is paid out, it is added to their taxable income.
If you pay care expenses for 2 qualifying children, you could each claim one child as a dependent and claim the specific expenses for that child.
The ability to use a child to qualify for the dependent care credit as a "non-dependent" only applies to parents who live apart and share custody, those special rules can't be used by parents who live together (and either file MFS or are unmarried.) Each child can be claimed by one and only one parent who gets all the tax benefits that apply in your situation.
Also note; your FSA administrators require that you certify that the expenses qualify for reimbursement. If one of you is certifying expenses but you know you won't be claiming the child, then you are falsely certifying non-qualifying expenses. Probably nothing will come of it (other than having to pay tax on the money) but the administrator is supposed to do due diligence and only pay legitimate claims so there is a slight risk that if the employer or plan administrator was audited, they could be fined by the IRS.
*Answers are correct to the best of my ability at the time of posting but do not constitute legal or tax advice.*
Sign In
