If divorced parents alternate years claiming a dependent (per MSA), but a parent dies during “their” year, can the other parent claim the dependent?

[DivorceDad]

A marital services agreement (MSA) stipulates that one parent claims a dependent in odd years and the other claims in even years. Even year parent has 58% custody and odd year parent has 42%. During an odd year, the parent which would normally claim the dependent dies. Can the other parent claim the dependent?

[Hal_Al]

Yes & no.

Whether the MSA is still valid is a legal question, not a tax question. My non-lawyer opinion is that it is and you should probably communicate with the executor to see if they plan to claim the child on the decedent’s final return. If you have already given the other parent a form 8332, for the year, then it’s probably still valid.

That said, the IRS doesn’t care about legal agreements (unless they are dated before 2009). The IRS goes by physical custody only; not legal custody. If you and the executor file competing returns, the IRS will honor yours, as custodial parent. The estate’s only remedy is to take you to court