When one spouse is a U.S. citizen or resident alien and the other is a nonresident alien, you may choose to treat the nonresident spouse as a U.S. resident for tax purposes. This election allows you to file a joint return and report worldwide income. Once made, the election applies to the year it is made and continues for all future years unless it is revoked or suspended.
How to Make the Election
- Attach a signed statement to your joint Form 1040 (or 1040-SR) for the first tax year the election applies.
- The statement must include:
- A declaration that one spouse was a nonresident alien and the other a U.S. citizen or resident alien on the last day of the tax year
- The name, address, and SSN (or ITIN) of each spouse
- You may also make this election by filing a joint amended return using Form 1040-X within 3 years of filing the original return or 2 years from the date the tax was paid, whichever is later.
Requirements for the Nonresident Spouse
- The nonresident spouse must have either an SSN or an ITIN.
- If not eligible for an SSN, file Form W-7 with the joint return to obtain an ITIN.
Consequences of the Election
- You must file a joint return for the year the election is made.
- Both spouses are treated as U.S. residents for income tax purposes for that year and all future years until the election is ended or suspended.
- You generally cannot claim tax treaty benefits that apply to a nonresident alien for any year the election is in effect.
Ending or Suspending the Election
- Revocation: Either spouse may revoke the election by attaching a signed statement to a timely filed return (including extensions) for the year the revocation is to take effect.
- Death: The death of either spouse ends the election. However, the surviving spouse may still file a joint return for the year of death if otherwise eligible, and may qualify for other filing statuses in subsequent years.
- Divorce or Legal Separation: A divorce or legal separation ends the election as of the beginning of the tax year in which it occurs.
- Suspension: If neither spouse is a U.S. citizen or resident at any time during a tax year, the election is suspended for that year. If either spouse becomes a U.S. resident again in a future year, the election may resume.
Source:
Publication 519
Disclaimer: Always verify details with current IRS forms, instructions, and your state’s Department of Revenue. For complex situations, consult a tax professional or attorney.