Buying a new home is an exciting new beginning for married couples. But, unfortunately, when the time comes to sell the house, the 4Sale sign may not be under such happy circumstances.

When the sale of the marital home comes with potential Capital Gains Taxes, it is essential to understand the available exclusion tests. In general, to qualify for the Section 121 exclusion, both the ownership and the use tests must be met.

Current Capital Gains Exclusion on the sale of the primary residence currently allows for a $250,000 individual exclusion and a $500,000 marital exclusion.

Ownership & Use Rules

Ownership Rule | To meet the ownership rule for the capital gains exclusion on the sale of the marital home, individual ownership must exist for the individual exclusion, or joint ownership must exist for the use of the marital exclusion.

Ownership may be established in two ways. First, legal ownership of the property may be found when one or both parties have vested ownership, as evidenced by each holding title to the property. Ownership may be held individually or jointly in various ways.

Ownership in the marital home may also be established through legal marriage.  For a married couple filing jointly, only one spouse has to meet the ownership requirement. This situation may increase the total exclusion available to $750,000 if one of the divorcing spouses remarries and the new spouse lives in the home for 2 out of the previous five years before the sale.

Important Note:  When a future sale of the marital home is expected, and the marital exclusion will be needed, both spouses must stay on the title once the divorce is final. Once the chain of ownership is broken, the divorcing couples may no longer qualify for the marital exclusion.

Ownership & Use Test

Residence Use Test | To meet the Residence Use Test, each party must have used the home as their primary residence for at least 24 months of the previous five years. You must have lived in the home for 2 of the last five years as your primary residence. The 24 months of residence can fall anywhere within the five years, and it doesn't have to be a single block of time. All that is required is a total of 24 months (730 days) of residence during the five years. Unlike the ownership requirement, each spouse must meet the residence requirement individually for a married couple filing jointly to get the complete exclusion.

The vacating spouse may still meet the Residence Use Test even if they do not meet the standard use test of having lived in the marital home for 2 of the previous five years before the sale as long as:

  • The vacating spouse retains ownership either solely or jointly, and
  • The former spouse continues to live in the home under a divorce or separation agreement and uses it as their main home.

If ownership in the home is transferred to one spouse without legal ownership via title vesting, ownership in the home may be counted for any time when the other spouse owned the home as time owned. However, each spouse must meet the residence use requirement on their own.

The Ownership and Use Tests may be met during different 2-year periods. However, both tests must be completed during the five years ending on the date of the sale. Generally, a person is not eligible for the exclusion if they excluded the gain from the sale of another home during the two years before the primary home sale.


Partial Exclusion of Gain for Divorcing Couples

When divorcing couples don't meet the Eligibility Test for the Ownership and Use periods, they may still qualify for a partial exclusion of the gain. In addition, the IRS recognizes couples who become divorced or legally separated as an unforeseeable event and will allow a partial exclusion of the gain.

Example |  Jack and Diane purchased a new home in July of 2020 for $400,000. In January of 2022, they are getting a divorce and must sell the marital home. Current market value is $550,000. After the cost of selling the home, they will have a Capital Gain of $125,000.

The standard rule for using the capital gains exclusion requires that Jack and Diane must have lived in the home for 2 of the last five years; however, in their case, they have only lived in the house for 18 months. Therefore, Jack and Diane may use a prorated capital gains exclusion equivalent to 18/24 or 75% of the available exclusion amount. It is recommended that they speak with a tax accountant to verify their prorated exclusion.

Working with the professional divorce team and recognizing any potential Capital Gains when selling the marital home is extremely important. When financial and tax planning is part of the divorce settlement agreement, working with a Certified Divorce Lending Professional (CDLP®) is equally as important. A CDLP® can recognize these strategies and help divorcing borrowers avoid any c potential hurdles that may conflict with agency lending requirements.

It is always important to work with an experienced mortgage professional who specializes in working with divorcing homeowners. A Certified Divorce Lending Professional (CDLP®) can help answer questions and provide excellent advice. Please don’t hesitate to reach out to me directly if I can provide additional information.

I want to be your Go-To Resource for all things mortgage and real estate needed to assist with your divorcing clients and homeowners!

This is for informational purposes only and not for the purpose of providing legal or tax advice. You should contact an attorney or tax professional to obtain legal and tax advice. Interest rates and fees are estimates provided for informational purposes only and are subject to market changes. This is not a commitment to lend. Rates change daily – call for current quotations.

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