Form 709 community property state not splitting gifts

[christapeter]

Hello, I request your suggestion:

I live in CA - community property state. I gifted 50k to our daughter from my own account of my earnings (not joint). I submitted form 709 but did not choose splitting the gifts and my husband did not file a tax return sharing half the amount.  My husband and I file taxes as Married filing separately and keep our accounts separate. he doesn't believe in gifting to children in general.  So I submitted 709 with the entire amount in 1 form on my name.

1) Would there be consequence to us or our daughter later from IRS that he did not file tax return in community property state? In this case, would the amount I gifted still be considered community property?

2)  In future, if were to gift my separate property (inherited and not earned during the time we are married), then would it be ok if I only submitted the 709 form ? How am I expected to prove that it is separate property in that case?

Thanks in advance for your advice.

[Bsch4477]

Since the gift was from your separate property your husband doesn’t have to file the form. You do not have to prove that the gift was from your separate account and there are no consequences for your daughter. All is well. 

[christapeter]

Thank you so much Bsch4477

I understand from your advice that there are not consequences for gifting to our daughter from separate property and I don't have to prove that it is from separate property.

Sorry one follow up question:

For the amount I gifted so far, would you mind confirming if it is still ok and our daughter/I will not be penalized  because I am afraid if that may be considered community property though it is from my separate account and my own salary but still earned during our marriage. Hence my worry. 

If it is considered community property, then will there be any consequences that my husband did not submit form 709?

Thanks very much again!

[Bsch4477]

I am not an attorney but my understanding is that any money earned during a marriage is community property and you can’t just declare that it is separate property by depositing it in a separate account.  I am thinking out of the box here but if your husband doesn’t object to the gift (even if he agree with it) he could “gift “ his half of the common property to you and then it would become your separate property.  There’s an unlimited marital gift exemption. Also just my personal opinion, because the estate deduction is many millions I doubt the IRS will take any interest in your gift. What I do know is that there are no consequences to your daughter in any event. 

[chistapeter]

Thank you very much Bsch4477! That was super helpful!