Frequently Asked Questions
Who is eligible for the Marital Settlement Consideration Exception?
Applies to property settlements following a written agreement and divorce within a specific three-year window.
How does the Marital Settlement Consideration Exception work?
Treat transfers made in satisfaction of marital property rights as being for 'adequate and full consideration' if they meet the requirements of IRC 2516, reducing the taxable estate.
What law authorizes the Marital Settlement Consideration Exception?
The Marital Settlement Consideration Exception is authorized under IRC §2043(b)(2) of the Internal Revenue Code (Title 26, United States Code).
Statutory Text — IRC §2043
Source: Internal Revenue Code, Title 26, United States Code
§ 2043. Transfers for insufficient consideration(a) In generalIf any one of the transfers, trusts, interests, rights, or powers enumerated and described in sections 2035 to 2038, inclusive, and section 2041 is made, created, exercised, or relinquished for a consideration in money or money’s worth, but is not a bona fide sale for an adequate and full consideration in money or money’s worth, there shall be included in the gross estate only the excess of the fair market value at the time of death of the property otherwise to be included on account of such transaction, over the value of the consideration received therefor by the decedent.
(b) Marital rights not treated as consideration(1) In generalFor purposes of this chapter, a relinquishment or promised relinquishment of dower or curtesy, or of a statutory estate created in lieu of dower or curtesy, or of other marital rights in the decedent’s property or estate, shall not be considered to any extent a consideration “in money or money’s worth”.
(2) ExceptionFor purposes of section 2053 (relating to expenses, indebtedness, and taxes), a transfer of property which satisfies the requirements of paragraph (1) of section 2516 (relating to certain property settlements) shall be considered to be made for an adequate and full consideration in money or money’s worth.
(Aug. 16, 1954, ch. 736, 68A Stat. 388; Pub. L. 98–369, div. A, title IV, § 425(a)(1), July 18, 1984, 98 Stat. 803.)
Editorial Notes
Amendments1984—Subsec. (b). Pub. L. 98–369 amended subsec. (b) generally, designating existing provisions as par. (1) and adding par. (2).
Statutory Notes and Related Subsidiaries
Effective Date of 1984 AmendmentPub. L. 98–369, div. A, title IV, § 425(c)(1), July 18, 1984, 98 Stat. 804, provided that: “The amendments made by subsection (a) [amending this section and section 2053 of this title] shall apply to estates of decedents dying after the date of the enactment of this Act [July 18, 1984].”