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Divorce & Marital Planning

§121 Exclusion Preservation Post-Divorce

Divorced spouses can still both claim §121 use/ownership tests via §121(d)(3) tacking — up to $500K exclusion preserved.

Overview

IRC §121(d)(3) allows a divorced spouse who is granted use of the marital home (even without ownership) to have the other spouse's use tacked to theirs for the 2-out-of-5 test. Additionally, an ex-spouse who transfers a home under §1041 gets to tack the transferor's ownership period. Result: both spouses can preserve their $250K exclusion even after divorce timing that would otherwise disqualify one.

Best fit
Divorcing homeownersEx-spouse remaining in marital homeAttorneys structuring MSAs
Estimated impact
Up to $500K combined capital-gain exclusion preserved

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