For how many years after a death of my husband must I file an injured spouse form?

[xlinzy88x]

How many years must I keep filing an injured spouse form after my deceased husbands death?  I filed this form the tax season after his death, but must I keep filing every subsequent year?

[Opus 17]

You can't file an injured spouse form unless you file a joint return, and you can only file a joint return the year he died.

Do you maybe mean an innocent spouse claim?  What is the nature of the debt or obligation you are trying to protect yourself from?

[DanielV01 · Accepted solution]

No, it is no longer needed.  The reason why is that you no longer file a joint return with that spouse (perhaps using Qualifying Widow, or Head of Household, or joint with a different spouse, but not with the Spouse who had the debt).  Please note the following excerpt from Instructions for Form 8379, Injured Spouse Allocation (click on link for full PDF article):  

Purpose of Form

Form 8379 is filed by one spouse (the injured spouse) on a jointly filed tax return when the joint overpayment was (or is expected to be)  applied (offset) to a past-due obligation of the other spouse. By filing Form 8379, the injured spouse may be able to get back his or her share of the joint refund.(Italics added).

[xlinzy88x]

Okay great!  Thanks!  One last question, do I need to change to a separation of liability form since I am widowed?  This issue arose with him way before him and I were married and it was for unemployment so I'm just trying to figure this out before I file this year and have them yanked.

[DanielV01]

That also should not be necessary.  Please see this link for more information:  <a rel="nofollow" target="_blank" href="https://www.irs.gov/businesses/small-businesses-self-employed/relief-by-separation-of-liability">htt... you will notice, to request this type of relief, you would have had to have filed a joint return with your late husband in the year that the understatement of tax occurred.  Since an Injured Spouse form implies that he had this debt from before you were married, this is not a debt for which you are "jointly and severably liable":  it is HIS debt.  When filing a joint return, however, the IRS can apply the TOTAL refund to the debt.  The Injured Spouse form allows you to receive the portion of the refund that was attributable to YOUR INCOME and credits only, and then the remaining portion is offset to his debt.  Since you are no longer married to him, and no longer filing jointly with him, your refund cannot be offset and applied to his debt because you are not liable for it.

[xlinzy88x]

Thank you so much for the quick and informative answer!  I appreciate it so much!!

[DanielV01]

Always a pleasure to help.  We are sorry for the loss you have suffered also.

[Opus 17]

A debt that was only his from before the marriage should not become your debt after his death.  If he owed money to the state for unemployment, the state will just have to do without.

[emmmypemmydemmy1]

It is needed the year of death correct? \

[emmmypemmydemmy1]

no i filed joint return year he died. can i still include 8379 for year of death

[DoninGA]

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@emmmypemmydemmy1 wrote:

no i filed joint return year he died. can i still include 8379 for year of death

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Yes you can still file the Form 8379 for the year he passed away since you filed a joint tax return for the year of death.

IRS Form 8379 - https://www.irs.gov/forms-pubs/about-form-8379

[emmmypemmydemmy1]

Thank you for your reply. My spouse and I always filed separately for the 4 years we were married. The year he passed, I filed jointly with an injured spouse form 8379. IRS did not send me my refund. I have no idea why they did that. It was like they never looked at the 8379.

 From everything i read, i had 2 choices. Either file separately or file jointly with a 8379 included. I wish I had now just filed separately like we always did instead of trying to take advantage of bigger deductions.  I also got a large bill from state when I was expecting a refund.  I thought maybe I did not qualify to file jointly since we always filed separate? Or maybe it is because my spouse is deceased ? They want to recover his back taxes from me? Now I have to see a tax lawyer. Any thoughts ? Did I do something wrong? 

[emmmypemmydemmy1]

new question. My spouse and I always filed separately for the 4 years we were married. The year he passed, (2020) I filed jointly with an injured spouse form 8379. IRS did not send me my refund. I have no idea why they did that. It was like they never looked at the 8379.

 From everything i read, i had 2 choices. Either file separately or file jointly with a 8379 included. I wish I had now just filed separately like we always did instead of trying to take advantage of bigger deductions.  I also got a large bill from state when I was expecting a refund.  I thought maybe I did not qualify to file jointly since we always filed separate? Or maybe it is because my spouse is deceased ? They want to recover his back taxes from me? Now I have to see a tax lawyer. Any thoughts ? Did I do something wrong?