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E30
Level 1

Quitclaim Rental Property to Spouse during Separation

 
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8 Replies
E30
Level 1

Quitclaim Rental Property to Spouse during Separation

Hi.

My wife and I are getting separated. We own a rental property which we have been writing off our taxes for about 10 years. We have been filing jointly. I am going to quitclaim her the rental property as part of the separation agreement. Do I have a tax consequence or does that all get transferred to her?

 

Thanks

E30
Level 1

Quitclaim Rental Property to Spouse during Separation

....and how would I transfer all of that tax info stored in TT to my wife's 2020 return?

 

Thanks

Quitclaim Rental Property to Spouse during Separation

First there is no tax consequence to you because of the property settlement incident to the divorce  and neither of you will be able to use the same old turbotax account ... you both need to start new ones.  And she will enter the asset from scratch using the info off the 2018 depreciation worksheet.  

DanielV01
Expert Alumni

Quitclaim Rental Property to Spouse during Separation

You will likely have a consequence, yes.  A quitclaim is a type of gift.  If you give a gift that has a value of greater than $15,000 to any individual, you are responsible for paying gift tax on the gift.  However, it is likely you will not actually end up paying tax on the gift.  Instead, you will file Form 709 (Gift Tax Return), and claim the Universal Life Credit against the tax.  This credit is for gift and estate tax.  The credit is enough to cover over $11,000,000 of gift and estate assets that can be taxable during the lifetime, and just after passing and transferring the estate.  

 

It is not automatic that you will have gift tax.  You mentioned that you have been renting the house for a period.  Thus, you have (or should have) been claiming depreciation during that time.  This reduces the basis cost of the home, and also the amount you are gifting.  For example, if you originally purchased the home at $100,000, but you have taken $88,000 of depreciation during that time, the value of the gift is only $12,000 (which is what she will then have as basis in the home when she eventually sells it, minus any remaining depreciation).  You do not need to file a gift tax return on a $12,000 gift.  This may not be a likely scenario for you (10 years of depreciation probably will not reduce the value of the home to under $15,000), but it is a possible scenario.  

 

Either way, she reports nothing on her return for the quitclaim.  You do through the gift you are giving.

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Quitclaim Rental Property to Spouse during Separation

Gift tax filing  is not warranted in this case for 2 reasons ... first they are still married : 

 

Exception #4: Gifts to Spouses

The unlimited marital deduction covers gifts made to spouses who are U.S. citizens. As the name implies, you can give as much to your beloved as you like, either before or after your death, free of taxation, as long as you're married.

 

And second this is a property settlement incident to a divorce or a pending divorce ... the quit claim is done not to report a sale but simply to remove a name from the deed.  https://www.journalofaccountancy.com/issues/2013/apr/20126248.html

DanielV01
Expert Alumni

Quitclaim Rental Property to Spouse during Separation

Edited answer:  She still needs to track the adjusted basis.  She will receive the home with the basis "as-is", in other words, whatever you originally paid for the home minus depreciation taken.  She still has no other additional reporting on her tax return.

 

A quitclaim is normally a taxable gift except in a situation that Critter describes.

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E30
Level 1

Quitclaim Rental Property to Spouse during Separation

Makes sense. Thanks

DanielV01
Expert Alumni

Quitclaim Rental Property to Spouse during Separation

You're welcome.

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