For most couples, their home is one of the biggest assets they own, and it can have hidden tax and financial issues.
For most people, there is no tax when they sell their home, since the law allows you to exclude up to $250,000 of gain ($500,000 on a joint return) when you sell your home. This isn’t a “once in a lifetime” offer. You can exclude the maximum gain each time you sell your home, as long as you have lived in it for two of the five years before sale. The portion of your. capital gains over $250,000 will be fully taxable.
Years ago there were special rules for excluding gain if you are over 55, as well as rules requiring you to invest in a new home within two years to avoid gains. Those rules were completely superseded by the current law in 1997 and no longer apply.
If you are separated and have moved out of the home, you can still qualify for the $250,000 exclusion. Your old home will be considered to be your residence if your spouse has been occupying it prior to sale under the terms of a divorce or separation agreement or court order.
- If you moved from the house less than three years before sale, you will have lived in the house for two of the five years prior to sale and you can exclude $250,000 of your share of the gain. If you have been out of the house for more than three years, however, it is imperative that you and your spouse have a written agreement or court order granting your spouse exclusive use of the residence, to preserve your ability to fulfill the residency requirement.
- This exclusion of gain opens the door to joint ownership of homes for extended periods after divorce. Dad can agree to let Mom and the kids live in the house until the youngest child graduates from high school. As long as the divorce decree provides for Mom’s exclusive use of the home, Dad will be able to exclude his share of the gain when the home sells.
- Couples who own both a residence and a rental can exclude gains on the sale of both. Here’s how. George takes title to the residence and sells it, while Susie moves into the rental for two years, and then sells it. Each can exclude up to $250.000 of gain. (Susie will have to pay tax at a 25% rate on any depreciation claimed on the rental after May 6, 1997 as well as on a portion of the gain if the home was rented after 2009.)