§2523 — Title 26 Internal Revenue Code | U.S. Code

Summary

When a person gives property to their spouse during the year, the giver can subtract the full value of that gift when figuring taxable gifts for the year. The deduction is not allowed if the gift can end later and the giver keeps or gives away an interest or a power that would let the giver or someone else use or enjoy the property after the gift ends. If the gift can be paid out from specific assets that would not qualify for the deduction, the value of the gift must be reduced by those assets’ value. If the spouses hold property as joint tenants or tenants by the entirety, the small chance the giver might survive the spouse is not treated as keeping an interest. If the spouse gets all the income for life and can only appoint it to themselves or their estate, that is treated as a valid gift and not as something the giver kept. There is a special rule for “qualified terminable interest property” that can be elected; if elected by the due date for the gift tax return under section 6075(b) the election is irrevocable and the property is treated as a gift and not retained by the giver, with related estate and transfer effects and some exceptions for later inclusion under sections 2519 or 2044. Special rules also apply to joint-and-survivor annuities and to qualified charitable remainder trusts. You cannot deduct the same interest more than once. If the spouse is not a U.S. citizen, no deduction is allowed; instead the annual exclusion used for gifts to that spouse is $100,000 (replacing $10,000), and certain older rules (sections 2515 and 2515A as they stood before repeal) apply except for an election those rules allowed.

Title 26, §2523

Internal Revenue Code — Source: USLM XML via OLRC

(a)Where a donor transfers during the calendar year by gift an interest in property to a donee who at the time of the gift is the donor’s spouse, there shall be allowed as a deduction in computing taxable gifts for the calendar year an amount with respect to such interest equal to its value.

(b)Where, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, such interest transferred to the spouse will terminate or fail, no deduction shall be allowed with respect to such interest—

(1)if the donor retains in himself, or transfers or has transferred (for less than an adequate and full consideration in money or money’s worth) to any person other than such donee spouse (or the estate of such spouse), an interest in such property, and if by reason of such retention or transfer the donor (or his heirs or assigns) or such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest transferred to the donee spouse; or

(2)if the donor immediately after the transfer to the donee spouse has a power to appoint an interest in such property which he can exercise (either alone or in conjunction with any person) in such manner that the appointee may possess or enjoy any part of such property after such termination or failure of the interest transferred to the donee spouse. For purposes of this paragraph, the donor shall be considered as having immediately after the transfer to the donee spouse such power to appoint even though such power cannot be exercised until after the lapse of time, upon the occurrence of an event or contingency, or on the failure of an event or contingency to occur.

(c)Where the assets out of which, or the proceeds of which, the interest transferred to the donee spouse may be satisfied include a particular asset or assets with respect to which no deduction would be allowed if such asset or assets were transferred from the donor to such spouse, then the value of the interest transferred to such spouse shall, for purposes of subsection (a), be reduced by the aggregate value of such particular assets.

(d)If the interest is transferred to the donee spouse as sole joint tenant with the donor or as tenant by the entirety, the interest of the donor in the property which exists solely by reason of the possibility that the donor may survive the donee spouse, or that there may occur a severance of the tenancy, shall not be considered for purposes of subsection (b) as an interest retained by the donor in himself.

(e)Where the donor transfers an interest in property, if by such transfer his spouse is entitled for life to all of the income from the entire interest, or all the income from a specific portion thereof, payable annually or at more frequent intervals, with power in the donee spouse to appoint the entire interest, or such specific portion (exercisable in favor of such donee spouse, or of the estate of such donee spouse, or in favor of either, whether or not in each case the power is exercisable in favor of others), and with no power in any other person to appoint any part of such interest, or such portion, to any person other than the donee spouse—

(1)the interest, or such portion, so transferred shall, for purposes of subsection (a) be considered as transferred to the donee spouse, and

(2)no part of the interest, or such portion, so transferred shall, for purposes of subsection (b)(1), be considered as retained in the donor or transferred to any person other than the donee spouse.

(f)(1)In the case of qualified terminable interest property—

(A)for purposes of subsection (a), such property shall be treated as transferred to the donee spouse, and

(B)for purposes of subsection (b)(1), no part of such property shall be considered as retained in the donor or transferred to any person other than the donee spouse.

(2)For purposes of this subsection, the term “qualified terminable interest property” means any property—

(A)which is transferred by the donor spouse,

(B)in which the donee spouse has a qualifying income interest for life, and

(C)to which an election under this subsection applies.

(3)For purposes of this subsection, rules similar to the rules of clauses (ii), (iii), and (iv) of section 2056(b)(7)(B) shall apply and the rules of section 2056(b)(10) shall apply.

(4)(A)An election under this subsection with respect to any property shall be made on or before the date prescribed by section 6075(b) for filing a gift tax return with respect to the transfer (determined without regard to section 6019(2)) and shall be made in such manner as the Secretary shall by regulations prescribe.

(B)An election under this subsection, once made, shall be irrevocable.

(5)(A)In the case of any qualified terminable interest property—

(i)such property shall not be includible in the gross estate of the donor spouse, and

(ii)any subsequent transfer by the donor spouse of an interest in such property shall not be treated as a transfer for purposes of this chapter.

(B)Subparagraph (A) shall not apply with respect to any property after the donee spouse is treated as having transferred such property under section 2519, or such property is includible in the donee spouse’s gross estate under section 2044.

(6)In the case of a joint and survivor annuity where only the donor spouse and donee spouse have the right to receive payments before the death of the last spouse to die—

(A)the donee spouse’s interest shall be treated as a qualifying income interest for life,

(B)the donor spouse shall be treated as having made an election under this subsection with respect to such annuity unless the donor spouse otherwise elects on or before the date specified in paragraph (4)(A),

(C)paragraph (5) and section 2519 shall not apply to the donor spouse’s interest in the annuity, and

(D)if the donee spouse dies before the donor spouse, no amount shall be includible in the gross estate of the donee spouse under section 2044 with respect to such annuity.

(g)(1)If, after the transfer, the donee spouse is the only beneficiary who is not a charitable beneficiary (other than the donor) of a qualified charitable remainder trust, subsection (b) shall not apply to the interest in such trust which is transferred to the donee spouse.

(2)For purposes of paragraph (1), the term “charitable beneficiary” and “qualified charitable remainder trust” have the meanings given to such terms by section 2056(b)(8)(B).

(h)Nothing in this section or any other provision of this chapter shall allow the value of any interest in property to be deducted under this chapter more than once with respect to the same donor.

(i)If the spouse of the donor is not a citizen of the United States—

(1)no deduction shall be allowed under this section,

(2)section 2503(b) shall be applied with respect to gifts which are made by the donor to such spouse and with respect to which a deduction would be allowable under this section but for paragraph (1) by substituting “$100,000” for “$10,000”, and

(3)the principles of section 2515 and 2515A (as such sections were in effect before their repeal by the Economic Recovery Tax Act of 1981) shall apply, except that the provisions of such section 2515 providing for an election shall not apply.

Notes & Related Subsidiaries

Inflation Adjusted Items for Certain YearsFor inflation adjustment of certain items in this section, see Revenue Procedures listed in a table under section 1 of this title.

Editorial Notes

References in Text

section 2515 and 2515A, referred to in subsec. (i)(3), were repealed by Pub. L. 97–34, title IV, § 403(c)(3)(B), Aug. 13, 1981, 95 Stat. 302.

Amendments

2018—Subsec. (g)(1). Pub. L. 115–141, § 401(a)(205), substituted “beneficiary who is not a charitable beneficiary” for “noncharitable beneficiary”. Subsec. (g)(2). Pub. L. 115–141, § 401(a)(206), substituted “term ‘charitable beneficiary’ ” for “term ‘noncharitable beneficiary’ ”. 1997—Subsec. (g)(1). Pub. L. 105–34 substituted “qualified charitable remainder trust” for “qualified remainder trust”. 1992—Subsec. (e). Pub. L. 102–486, § 1941(b)(1), in closing provisions, inserted at end “For purposes of this subsection, the term ‘specific portion’ only includes a portion determined on a fractional or percentage basis.” Subsec. (f)(3). Pub. L. 102–486, § 1941(b)(2), inserted before period at end “and the rules of section 2056(b)(10) shall apply”. 1990—Subsec. (i). Pub. L. 101–508 inserted at end “This subsection shall not apply to any transfer resulting from the acquisition of rights under a joint and survivor annuity described in subsection (f)(6).” 1989—Subsec. (a). Pub. L. 101–239, § 7815(d)(2), struck out “who is a citizen or resident” after “Where a donor”. Subsec. (i)(2). Pub. L. 101–239, § 7815(d)(1)(A), substituted “which are made by the donor to such spouse and with respect to which a deduction would be allowable under this section but for paragraph (1)” for “made by the donor to such spouse”. 1988—Subsec. (f)(6). Pub. L. 100–647, § 6152(b), added par. (6). Subsec. (i). Pub. L. 100–647, § 5033(b), added subsec. (i). 1986—Subsec. (f)(4)(A). Pub. L. 99–514 amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “An election under this subsection with respect to any property shall be made on or before the first April 15th after the calendar year in which the interest was transferred and shall be made in such manner as the Secretary shall by

Regulations

prescribe.” 1983—Subsec. (f)(3). Pub. L. 97–448, § 104(a)(6), substituted “rules similar to the rules of clauses (ii)” for “the rules of clauses (ii)”. Subsec. (f)(4). Pub. L. 97–448, § 104(a)(4), divided existing provisions into subpars. (A) and (B), in subpar. (A) as so designated substituted “shall be made on or before the first April 15th after the calendar year in which the interest was transferred and shall be made in such manner as the Secretary shall by

Regulations

prescribe” for “shall be made on the return of the tax imposed by section 2501 for the calendar year in which the interest was transferred”, and in subpar. (B) as so designated substituted “An election under this subsection” for “Such an election”. Subsec. (f)(5). Pub. L. 97–448, § 104(a)(5), added par. (5). Subsec. (h). Pub. L. 97–448, § 104(a)(2)(B), added subsec. (h). 1981—Subsec. (a). Pub. L. 97–34, § 403(b)(1), struck out “(1) In general” designation for existing text and struck out par. (2) which declared that the aggregate of the allowed deductions for any calendar quarter should not exceed the sum of $100,000 reduced, but not below zero, by the aggregate of the allowed deductions for preceding calendar quarters beginning after Dec. 31, 1976, plus 50 percent of the lesser of the amount of the allowed deductions for such calendar quarter, determined without regard to par. (2), or the amount, if any, by which the aggregate determined under cl. (i) of par. (2) for the calendar quarter and for each preceding calendar quarter beginning after Dec. 31, 1976, exceeds $200,000. Subsec. (f). Pub. L. 97–34, § 403(b)(2), (d)(2), substituted provision relating to election with respect to life estate for donee spouse for provision relating to community property. Subsec. (g). Pub. L. 97–34, § 403(d)(2), added subsec. (g). 1976—Subsec. (a). Pub. L. 94–455 designated existing provisions as par. (1), struck out “one-half of” after “interest equal to”, and added par. (2) relating to limitations on aggregate amount of deductions. Subsec. (f)(1). Pub. L. 94–455, § 1902(a)(12)(E), struck out “Territory” after “any State”. 1970—Subsec. (a). Pub. L. 91–614 substituted “quarter” for “year” in two places.

made by subtitle A or subtitle C of title XI [§§ 1101–1147 and 1171–1177] or title XVIII [§§ 1800–1899A] of Pub. L. 99–514 require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after Jan. 1, 1989, see section 1140 of Pub. L. 99–514, as amended, set out as a note under section 401 of this title. Special Rule for Certain Transfers in October 1984 Pub. L. 99–514, title XVIII, § 1879(n)(3), Oct. 22, 1986, 100 Stat. 2910, provided that: “An election under section 2523(f) of the Internal Revenue Code of 1954 [now 1986] with respect to an interest in property which—“(A) was transferred during October 1984, and “(B) was transferred pursuant to a trust instrument stating that the grantor’s intention was that the property of the trust would constitute qualified terminable interest property as to which a Federal gift tax marital deduction would be allowed upon the grantor’s election, shall be made on the return of tax imposed by section 2501 of such Code for the calendar year 1984 which is filed on or before the due date of such return or, if a timely return is not filed, on the first such return filed after the due date of such return and before December 31, 1986.”

§2523 Gift to spouse

Summary

Title 26, §2523

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