43-309. Joint returns of husband and wife

If a husband and wife are required to file a return pursuant to section 43-301, they may file a joint return under the following conditions:

1. A joint return shall not be made if husband and wife have different taxable years. If such taxable years begin on the same day and end on different days because of the death of either or of both, the joint return may be made with respect to the taxable year of each. Such an exception does not apply if the surviving spouse remarried before the close of the surviving spouse's taxable year or if the taxable year of either spouse is a fractional part of a year under section 43-931.

2. In the case of the death of one or both spouses, the joint return with respect to the decedent may be made only by the decedent's executor or administrator, except that in the case of the death of one spouse the joint return may be made by the surviving spouse with respect to both the surviving spouse and the decedent if all of the following apply:

(a) A return for the taxable year has not been made by the decedent.

(b) An executor or administrator has not been appointed.

(c) An executor or administrator is not appointed before the last day prescribed by law for filing the return of the surviving spouse. If an executor or administrator of the decedent is appointed after the making of the joint return by the surviving spouse, the executor or administrator may disaffirm the joint return by making, within one year after the last day prescribed by law for filing the return of the surviving spouse, a separate return for the taxable year of the decedent with respect to which the joint return was made, in which case the return made by the survivor shall constitute the survivor's separate return.

3. For the purposes of this section, the status as husband and wife of two individuals having taxable years beginning on the same day shall be determined:

(a) If both have the same taxable year, as of the close of such year.

(b) If one dies before the close of the taxable year of the other, as of the time of such death.