I am republishing this article to be more clear about the 2018 updates.
The Military Spouses Residency Relief Act (MSRRA) is important law, but it is very misunderstood. Passed in 2009, it is actually an amendment to the Servicemember’s Civil Relief Act (SCRA) to provide certain specific protections to some military spouses. It was further updated in 2018 to include specific protections for all military spouses. It can provide great benefits to military spouses, particularly in the area of state taxes, but there is lot of misinformation about it.
What MSRRA Says
While MSRRA amends SCRA in a couple of ways, there are three main parts that are important to the majority of people.
Voting: A military spouse may not be prohibited from voting in federal, state, or local elections if he or she is residing elsewhere due the spouse’s military orders.
Taxes: SCRA, as amended by MSRRA, has two different sets of rules about military spouses and state taxation. Under the first rule, a military spouse may continue to maintain his or her properly obtained domicile, or state of legal residence, in a prior state, provided the domicile, or state of legal residence, is the same as the active duty spouse. Under the second rule, a military spouse may use the state of legal residence of their active duty service member for state taxation without having to obtain legal residency themselves.
Land Rights: There is a part that pertains to the rights that residents of certain areas have with regard to public lands. This might include mining rights or homesteading rights. This is a tiny, tiny portion of the population, and you would know if it applies to you.
What SCRA Now Means For Spouses and State Taxes
For many military spouses, the most important part of MSRRA/SCRA is the part that pertains to state taxes. As listed above, SCRA now has two ways to address military spouse state taxes.
1. You may maintain previously legally obtained domicile, or state of legal residence, for purposes of state income taxation. However, you must remember that under this part of the federal law, the spouse may only claim MSRRA/SCRA protections if he or she shares the same domicile, or state of legal residence, as the active duty service member.
For example, Lt. Johnny Pilot is a legal resident of Florida, and he is stationed in Virginia. His spouse must also be a legal resident of Florida in order to claim Florida for state income tax purposes. If the spouse is a legal resident of any other state, he or she must establish Virginia residency upon the move to Virginia. *see the section about state rules
2. A military spouse may use their active duty service member’s state of legal residence for purposes of voting and taxes without actually establishing legal residence there.
What MSRRA Does Not Say
MRSSA/SCRA is noticably silent on several issues of importance to military families. However, you will find people who will tell you that MSRRA somehow offers these protections. Unless you can find it in the law, it’s not in there.
MSRRA/SCRA does not allow military spouses to retain their driver’s license in their state of legal residence or anywhere else. However, most states have laws that permit military spouses to use an out-of-state license.
MSRRA/SCRA does not say anything about vehicle registrations, inspections or insurance.
MSRRA/SCRA does not have any provision for establishing domicile in any location, except via the regular process that generally includes being physically present in the state. It does not require states to permit a military spouse to obtain the domicile of the service member without fulfilling the requirements, nor does it permit a military member to pick a state without fulfilling the requirements.
How MSRRA Works With State Laws
This is the truly tricky part about MSRRA, but it’s not actually about MSRRA. It’s about state laws.
Under MSRRA/SCRA, states are required to give military spouses at least the protections listed in MSRRA/SCRA. However, states may go beyond what is required by the federal law. Many states give military spouses protections that are more generous than required under MSRRA.
Sometimes, this is just an act of kindness, but often it is due to misunderstanding of what the MSRRA/SCRA actually says, or sometimes even just poorly worded laws. For example, a state may permit a military spouse to not become a legal resident when moving there when they don’t share the same state of legal residence as their active duty service member. People often claim that generous state laws are actually protections provided under MSRRA. This can cause a lot of confusion!
I encourage you to read and understand the MSRRA law so that you can benefit from its provisions without accidentally trying to do something that it doesn’t permit. If you are ever in doubt about it, the legal services office on a base in the appropriate state should be able to give you guidance about MSRRA and any applicable state law.
The benefits in the MSSRA amendment to the SCRA are a great blessing for those who can benefit from them, but it isn’t the blanket rule that many people would have you believe. It has very specific protections and situations in which those protections apply. Understanding it is key to using it properly.
Key Concepts About MSRRA/SCRA and State Taxes
Military spouses don’t have a home of record, because a home of record is nothing more than the place where a service member joins the military. In 99% of cases, when someone is talking about their home of record, they actually mean their state of legal residence. The two may be the same state, but they’re not the same concepts.
SCRA permits military spouses to use their service member’s state of legal residence for purposes of voting and taxation, but it does not guarantee the right to be granted legal residence in the state.
Just because you did something before, and nothing bad happened, doesn’t mean that’s what the law says. I speed more than I should admit, but that doesn’t change the speed limit. Same for your friend or neighbor who filed in wherever and no one audited them. States can and do challenge legal residence in certain cases. If a state challenges your legal residence, do your actions (voting, maintaining driver’s licenses, state declared on your will, vehicle registration, paying taxes) demonstrate your stated intent?
I encourage you to read and understand the SCRA law so that you can benefit from its provisions without accidentally trying to do something that it doesn’t permit. If you are ever in doubt about it, the legal services office on a base in the appropriate state should be able to give you guidance about SCRA and any applicable state law.
The benefits in the MSSRA amendment to the SCRA are a great blessing for those who can benefit from them, but it isn’t the blanket rule that many people would have you believe. It has very specific protections and situations in which those protections apply. Understanding it is key to using it properly.
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Well done, Kate!
So, If you are not legally married to an active duty service member, then you are ineligible for the protections of the MSRRA, is that right?
This is correct.
No many how times we move, we come back to check this site for updates and a refresher.
So my spouse is a residence of Illinois and I am a residence of California but we are stationed in Guam and I am currently working! So I would have to pay Guam taxes? So I do not qualify for MSRRA? Can I change my residency to my spouses state?
Guam is a special situation and you definitely need to check with your installation’s legal services office to figure out what you need to do. I’m not an expert on Guam taxes and so it would be irresponsible to tell you anything! Good luck!
I am a legal resident of Florida stationed in Maryland. My husband is immigrating to the US and will be living with me in Maryland. Can he obtain Florida residency, or does he need to become a legal resident of Maryland?
This situation seems to fall into a murky area that sort-of falls under the new law but the new law isn’t at all clear. https://www.katehorrell.com/military-spouse-tax-law/ Under the old law, your husband would need to become a legal resident of Maryland because he wouldn’t fulfill the requirements to become a legal resident of Florida without physically residing there. The new law directs that military spouses may use the legal residence of their active duty husband or wife for purposes of voting and taxes, but does not say that they can become legal residents there, nor does it give any provisions for making that happen. As it is a brand new law, there will be some time for the states to interpret and implement it. Hopefully you have a few months for things to shake out. And congratulations on being able to live together!
I am a legal resident of FL (as is my active duty service member spouse). We are PCSing to Fort Bragg in NC at the end of March and my employer in Florida has been gracious in allowing me to work remotely for them in NC. As I understand it, because both my husband and I are legal FL residents, I shouldn’t be liable for NC state tax. Would I still file a state tax form in NC and just notate that I am not responsible for state tax?
Mandy, as long as your employer doesn’t withhold North Carolina taxes, you shouldn’t need to file anything with North Carolina. (Assuming you don’t have other income, like a rental property, that requires you to file there.)
Note: not a lawyer or tax accountant, just a military spouse who is also a Florida resident.
MY HUSBAND IS ACTIVE DUTY AND WE ARE RESIDENCE OF GA. WE ARE NOW STATIONED IN THE STATE OF NORTH CAROLINA. I AM WORKING HERE IN NORTH CAROLINA, AND ASKED MY EMPLOYER, WHAT WOULD THEY NEED FROM ME SO I DONT HAVETO PAY STATE TAXES HERE SINCE I,M NOT A RESIDENT OF THIS STATE. I WAS TOLD THEY WOULD NEED A COPY OF MY HUSBAND LES TO KEEP ON FILE IN CASE THEY ARE EVER AUDITED BY THE STATE. IS THIS TRUE, OR DO THEY JUST NEED A COPY OF OUR PCS ORDERS ?
Hi, Do spouses only maintain a state or residency when it is their husbands legal state of residency? My husbands home of record is WV and I lived in NC before we got married. Am I able to maintain that NC is my legal state of residency every time we move or do I have to claim my husbands home of record even tough I never lived there? We are stationed in CA now.
Hi Alexis. Your husband’s home of record is irrelevant – it is simply the place from which he entered the military. Is his state of legal residence also West Virginia? If y’all don’t have the same state of legal residence, federal law does not permit you to maintain a previous legal residence, but state law may vary. (California is kind of grabby in that sense and probably thinks you need to become a California resident.) However, regardless of his or your residence, you can use his residence for tax and voting, which is usually the main things that we are worried about.
I hope that helps.
Hi, I’m hoping you can shed some light on my situation as we’ve been going in circles with my employer! My now-husband was PCS’d to CA from NY. We were living together in NY and I was a NY resident. He is an OR resident.
When I came to CA, I became a CA resident because we weren’t married yet. We got married, and now I am trying to claim OR residency for tax purposes under MSRRA. We actually went to OR and I got my OR DL and voter registration without a problem. Am I set to claim OR residency now? My CA employer is being crabby about it, saying I’m not eligible to claim OR.
Thanks for your response!
As long as your husband is a legal resident of Oregon, you are able to claim Oregon for tax purposes regardless of whether you have established residency. (Though it sounds like you did – lucky you!)
Have you printed out the law and shown it to your employer? It’s not unclear.
Thanks for your response. Yes, my husband is a legal resident of OR (it’s on his LES, DR, all docs!). I have shown the law to my employer and they refuse to comply. I will continue to state my case with help from the local JAG. Thanks again.
Hi my husband is active duty and his residency is PA and stationed in Maryland. I move to Maryland from California and have residency in Maryland. Now we are going to be stationed in California and I will find a new job in California. Do I qualify for MSRRA? Thank you!!
I am a resident of VA and my husband is a resident of FL. We had orders overseas for 3 years and I kept my VA residency and he kept his FL residency. Now we’ve been stationed in CA. He will maintain his FL residency, but am I understanding it correctly that I will have to give up my VA residency and either go with CA or FL?
I am a Maryland resident, got married in MD to an active duty member from Texas. We are now currently stationed overseas but I am still working remotely for a company in Maryland. I want to change my state of residence to Texas, where he is from and where we will be moving after the overseas tour. What do I need to submit to Maryland, to have them no longer take out MD taxes from my payroll since I will use my husbands residency?
You can file exempt with your company if it is your intent to use your spouse’s state of legal residence for purposes of taxes.
There’s no provision in SCRA/MSRRA for you to change your state of legal residence without physically residing there, but since residency is a state law, sometimes there can be ways to manage it. Might be hard while you are overseas, though. And I’ve heard all sorts of results. The Patriot Act and REAL ID act have made the required paperwork a lot more difficult.
Good luck to you!
My husband and I are both FL residents, were married in Florida, and he enlisted in Florida. We PCSed to NC about a year and a half ago, and I was lucky enough to be able to continue working with my same company remotely. Right now, I claim exempt from NC state tax due to my legal residency in FL (we don’t own any property there, we only ever rented — not sure if that information is helpful). We’ll now be PCSing to Germany in January of next year, and I intend to continue working remotely for my company, but I’m a little confused about how that works come tax time. They’re not set-up for international payroll, so my only option for tax withholding is Federal and whatever state I claim as home. Would I continue with my current set-up of NC tax exemption, or how would you suggest I handle my taxes while oversees? I can’t simply change my address to FL because there’s not a address I can use (my current FL driver’s license lists my home address as the apartment we rent in NC). I’ve read up as much as I can on the subject, and am not finding a clear cut answer so any suggestions you have would be very much appreciated. 🙂
You will continue to be a legal resident of Florida. Is your payroll office not capable of setting your withholding for Florida (not withholding?) Or just making you exempt?