Gift-Splitting Between Spouses and What It Does to Form 709

Can a married couple give $38,000 to one person without gift tax in 2026?

Yes. For 2026 the annual exclusion is $19,000 per giver and per recipient (IRC § 2503(b); Rev. Proc. 2025-32), so two spouses can give one person $38,000. If each spouse gives $19,000 of his or her own money, nothing more is needed. If the whole $38,000 comes from one spouse, the couple must elect gift-splitting under IRC § 2513 to use both exclusions. That election is made on a gift-tax return, Form 709, which the donor spouse must file even though no tax is due.

What the election does

Under § 2513(a)(1), a gift made by one spouse to someone other than the other spouse is “considered as made one-half by him and one-half by his spouse.” The gift is then measured against two annual exclusions, and any excess is divided between the two spouses’ lifetime exemptions.

Requirements

The statute and its regulations (Treas. Reg. § 25.2513-1) set four conditions:

• Married at the time of the gift. A person counts as a spouse only if married to the donor when the gift is made.
• No remarriage that year. A donor who is divorced or widowed after the gift can still split it, but not if he or she remarries “during the remainder of the calendar year.”
• Both citizens or residents. Splitting applies “only if at the time of the gift each spouse is a citizen or resident of the United States.”
• Both consent. The election is effective only if both spouses signify consent for the calendar year.

The gift must also be to a third party. A gift from one spouse to the other is not split; it falls under the marital deduction, or under the separate limit for a spouse who is not a U.S. citizen.

The election covers every gift that year

Consent is not given gift by gift. It applies to “all such gifts made during the calendar year by either while married to the other” (§ 2513(a)(2)). The regulation adds that the consent “may not be applied only to a portion” of the gifts, and that it reaches gifts made by either spouse: one spouse cannot split his or her gifts unless the other spouse’s gifts to third parties are split as well.

Two timing limits narrow the rule:

• Gifts made during any part of the year when the spouses were not married to each other are not covered.
• Gifts made during any part of the year when either spouse was a nonresident who was not a citizen are not covered.

The practical consequence is that a couple cannot split one large gift to a child and keep another gift, such as one spouse’s gift to a relative from a prior marriage, entirely on that spouse’s own return. Electing for the year moves half of every third-party gift to the other spouse.

Consent and the Form 709 filing consequence

Gift-splitting always requires a return. The current Instructions for Form 709 state that “you must file a gift tax return to split gifts with your spouse (regardless of their amount).” Spouses cannot file a joint gift-tax return; each return is individual.

How consent is given. Under the form revised for 2025 gifts, the donor spouse completes Part III, “Spouse’s Consent on Gifts to Third Parties,” and attaches a Notice of Consent. The instructions say the consenting spouse “is no longer required to sign the return but must sign a Notice of Consent to be attached to the donor’s return.” The notice must be signed and dated and must state that the spouse elects to treat all gifts to third parties as made one-half by each spouse.

Who must file. The instructions for 2025 gifts, the latest published, give the general rule that both spouses file their own returns when gifts are split. Only the donor spouse files if either exception applies. The dollar amounts below are those in the 2025 instructions; the exclusion is the same $19,000 for 2026.

• Exception 1. Only one spouse made any gifts, the total to each third-party recipient is not more than $38,000, and all of the gifts were present interests.
• Exception 2. Only the donor spouse gave more than $19,000 (but not more than $38,000) to any recipient, the other spouse’s only gifts were $19,000 or less to different recipients, and all gifts by both were present interests.

Deadline. Consent can be given only after the calendar year ends, and not after April 15 of the following year. If neither spouse has filed a return for the year by that date, consent must be given on the first return either of them files. Consent cannot be given after a notice of deficiency for the year’s gift tax has been sent to either spouse (§ 2513(b)(2); Treas. Reg. § 25.2513-2). The executor of a deceased spouse can give the consent.

Revocation. A consent given on or before April 15 can be revoked until that date. A consent first given after April 15 cannot be revoked (§ 2513(c); Treas. Reg. § 25.2513-3). More on the return itself is on the Form 709 page.

Joint and several liability

Consent has a cost beyond paperwork. Once it is given, “the liability with respect to the entire tax imposed by this chapter of each spouse for such year shall be joint and several” (§ 2513(d); Treas. Reg. § 25.2513-4). The consenting spouse becomes liable for the whole of the other spouse’s gift tax for that year, not only for the half of the gifts attributed to him or her.

For most couples no gift tax is due, because taxable gifts are absorbed by the lifetime exemption. The liability matters when a gift is later revalued upward on audit, or when the couple separates after the year in question.

Gifts that cannot be split

• A general power of appointment in the spouse. Splitting does not apply to a gift of an interest in property if the donor “creates in his spouse a general power of appointment” over that interest (§ 2513(a)(1)).
• Gifts partly to the spouse. When one transfer benefits both the spouse and third parties, as with a trust that names the spouse as a beneficiary, the consent is effective for the third parties’ share only so far as that share “is ascertainable at the time of the gift and hence severable” from the spouse’s interest (Treas. Reg. § 25.2513-1(b)(4)). The regulation points to the actuarial valuation rules for measuring interests of that kind.
• Future interests still miss the exclusion. Splitting divides a gift; it does not turn a future interest into a present one. A split gift to a trust needs its own present-interest mechanism, such as a withdrawal power, to use either spouse’s annual exclusion.

Split gifts to a 529 plan can be combined with the five-year election under proposed Treasury regulations; it is a separate election on the same return.

Community property does not need the election

Gift-splitting exists for couples whose gift comes from one spouse’s separate property. A gift of community property is already a gift from both. The Form 709 instructions state: “If a gift is of community property, it is considered made one-half by each spouse,” and give the example of a $100,000 community-property gift treated as $50,000 from each spouse, with each filing a return. No § 2513 consent is involved, and the all-gifts rule and joint liability that come with consent do not arise from the community-property gift itself.

Whether an asset is community or separate property is a question of state law and of how the couple has held and titled it.

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