I have contributed $5000 to Dependent day care FSA account. My employer makes deductions every pay check.But I just discovered that i am not eligible for the tax break since my spouse is not working. Can i still claim my sons day care expenses now, and then later pay taxes on the $5000 when i file my 2012 returns?

“I have contributed $5000 to Dependent day care FSA account. My employer makes deductions every pay check.”------>In general, you may be allowed to set aside up to $5,000 in pretax money for the year in a flexible spending account for dependent-care expenses. Or you could claim those expenses for the dependent-care credit when you file your 2012 tax return. But you can't use the same expenses for both tax breaks. Most families who have access to a dependent-care flexible spending account at work would be better off running their child-care expenses through the FSA. Money you set aside in a flexible spending account is not only subtracted from your paycheck before income taxes are calculated, but it also avoids the 5.65% Social Security and Medicare tax.
“But I just discovered that i am not eligible for the tax break since my spouse is not working”-----> To claim the credit (assuming you meet the qualifications) your non-disabled, unemployed spouse must have looked for work during the time the expenses were incurred; and have earned income during the year. (Unemployment income is not considered earned income.).If your unemployed spouse is disabled or a full-time student, the IRS treats her/him as though he/she havs earned income, provided you are not disabled or going to school full time yourself.
.” Can i still claim my sons day care expenses now, and then later pay taxes on the $5000 when i file my 2012 returns?”------>I don’t think so;since you can make contributions to your account with pre-tax money, thereby avoiding having to pay income and payroll withholding taxes on the amount you contribute, I guess you need to increase the amount of federal income tax withheld from your paycheck, file a new Form W-4 with your employer. You're required to fill out this form when you start working for an employer, and you can fill out a new one whenever your circumstances call for a change in the amount of withholding.

Thanks for the response, is there a way i can get the money back?

I also called my insurance company, the rep said file the claim. When i asked him about tax questions, he said he is not tax expert and would not know.
It seems to me the fair thing is to submit the claim to get $5000 back, and since i don't qualify for dependent day care I pay taxes for the $5000 when i file my returns.

"I also called my insurance company, the rep said file the claim."--->I see. Frankly i do not know if you can file the claim to get it back. You can contact the representative

"It seems to me the fair thing is to submit the claim to get $5000 back, and since i don't qualify for dependent day care I pay taxes for the $5000 when i file my returns."--->I guess so as desribed previously.