1031 Exchanges in Divorce

April 13, 2022

Due to the rise in home values, when it comes time to sell their properties, some divorcing couples may face hefty tax consequences and want to roll their capital gains from one property into another. Some of these consequences are preventable with a little strategic planning; others may not fit within the IRS Code parameters for taxable exposure.

Lately, I’ve heard a lot of people say, “We’re just going to do a 1031 exchange to save taxes.” But a 1031 exchange isn’t right for everyone. It’s important to note what it takes to qualify for a 1031 exchange, as well as know how to ensure the couple—if they do qualify—do not exempt themselves because of a mishandling of funds, or blow timelines that they didn’t know about.

I’ve outlined some basic bullets to consider below.

Note that I am not a tax professional. For anyone interested in pursuing a 1031 exchange, I cannot overemphasize enough the importance of consulting with a qualified tax professional, especially in a divorce proceeding that makes these transactions even more complicated.

Basic Rules of 1031 Exchanges

  • 1031 exchanges only pertain to investment properties.
  • Does not apply to primary residences or vacation homes, unless they can qualify as an investment under a very small sliver of exceptions.
  • Property must be exchanged for a “like for like” property, which means another investment property must be purchased, not a primary residence (again, a few exceptions apply).

Process

  • Identify a replacement property in writing within 45 days of selling the relinquished property.
  • Sale must be complete on the replacement property within 180 days after the sale of the relinquished property is completed or the due date of the income tax return.
  • The funds from the relinquished property cannot be touched by the principal. A qualified intermediary or exchange facilitator must handle the exchange of funds.

Divorce Considerations

  • Title: The replacement property must be purchased in the same taxable entity. So, if a couple holds joint title to their rental property and they choose to do a 1031 exchange, they must purchase the new rental property together.
  • However, 1041 of the IRS Code pertains to tax-free transfers from one spouse to the other. Although not ideal, this could be a roundabout way to accomplish a tax savings. Your clients should be working directly with an experienced tax professional to guide them through this.
  • If one party wishes to move into their rental property after the divorce, there are a few things to keep in mind:
    • If that property was acquired as a 1031 exchange, there are rules they’ll need to comply with.
    • If they did not acquire their rental property as a 1031 exchange, they should consider the tax consequences of converting the characterization of that property from a rental to an owner-occupied, especially if they plan to sell it in the future.

Please refer to the IRS Fact Sheet for 1031 Exchanges for more information. The couple should also work with a qualified real estate professional, such as a CDRE, who understands the intricacies of these transactions to ensure they are in compliance with timelines and guidelines.

If you need advice on real property issues—or have a property that needs to be listed—give me a call or send me an email. I’m always happy to help!

650-550-8646

Shannon Rose
CDRE, SRES, CDPE, CLHMS, GPS
DRE# 01422955
Los Gatos, CA
1-650-550-8646
DivorceRealtor@RoseGroupRE.com

BAY AREA DIVORCE REALTOR®

SHANNON ROSE/ROSE GROUP
DRE #01422955

KW BAY AREA ESTATE
DRE #01526679

16780 LARK AVE.
LOS GATOS, CA 95032

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