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Can You Change Spousal Ownership in a 1031 Exchange

We are pleased to share this guest blog provided to our readers by IPX1031, the largest and one of the oldest Qualified Intermediaries in the United States. 

Will Adding/Deleting My Spouse Impact My 1031 Exchange?

Generally, no changes should be made to the way title to property is held shortly before or after property is sold/purchased via a 1031 Exchange. For example, if title to an apartment building is held by Lisa and Russell as husband and wife, title to the new Replacement Property should be held in the same manner.

However, sometimes a lender may require a change in title (“vesting”) as a condition to providing a loan for the new Replacement Property, such as owning the new property in only the name of the husband or wife. This situation could be problematic for spouses who have entered into a 1031 Exchange since appeasing the lender may invalidate their 1031 Exchange.

1031 Solutions When Adding or Removing Spouse from Legal Title

The good news is that an IRS Code provision that created unlimited gifting between spouses may help address these scenarios. In 1984, Congress passed IRC Section 1041. This law, which remains in effect today, created unlimited tax-free gifting between spouses. Since this issue has not been revisited since the enactment of Section 1041, it is not clear if the IRS will still issue the same ruling today as it did in TAM8429004*. Because it is unresolved, many tax advisors suggest the following with respect to the spousal title scenarios below:1:12

Spousal Title Scenarios & Examples

1)  One spouse is on title to the Relinquished Property, but the lender wants both on the title to the Replacement Property

Have counsel prepare an agreement that the co-signing spouse is doing so in trust for the other spouse; the Replacement Property is the separate property of other spouse and that no gift has occurred.

2)   If there is no lender requirement – only the spouse on title to the Relinquished Property should be on title to the Replacement Property

The property can be placed in a revocable living trust with the other spouse named as the beneficiary to protect from an untimely death until they can safely be added to title.

3)   If both spouses are on title to the Relinquished Property and lender only wants only one on the Replacement Property, there is not a clear answer

The spouses may need to find a new lender or rely on the unlimited gifting provision of Section 1041.

Taxpayers should always consult with their tax advisor for advice with respect to their individual situation.

Please contact us for more information! 

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*Technical Advice Memorandum which is part of the 1984 Section 1033

Paul Getty

Paul Getty is a licensed real estate broker in the state of California and Texas and has been directly involved in commercial transactions totaling over $3 billion on assets throughout the United States. His experience spans all major asset classes including retail, office, multifamily, and student, and senior housing. Paul’s transaction experience includes buy and sell side representation, sourcing and structuring of debt and equity, workouts, and asset and property management. He has worked closely with nationally prominent real estate brokerage and investment organizations including Marcus Millichap, CB Richard Ellis, JP Morgan, and Morgan Stanley among others on the firm’s numerous transactions. Paul also maintains a broad network of active buyers and sellers of commercial real estate including lenders, institutions, family office managers, and high net worth individuals. Prior to founding First Guardian Group/FGG1031, Paul was a founder and CEO of Venture Navigation, a boutique investment banking firm specializing in structuring equity investments made by institutions and high net worth individuals. He possesses over 35 years of comprehensive worldwide business management experience in environments ranging from early phase start-ups to multi-billion-dollar corporations. His track record includes participation in IPOs and successful M&A activity that has resulted in investor returns of over $700M. Paul holds an MBA in Finance from the University of Michigan, graduating with honors, and a Bachelor’s Degree in Chemistry from Wayne State University. Paul Getty holds Series 22, 62, and 63 securities licenses and is a registered financial representative with LightPath Capital Inc, member FINRA /SIPC. Paul is a noted speaker, author, and actively lectures on investments, sales, and management related topics. He is author of The 12 Magic Slides, Regulation A+: How the JOBS Act Creates Opportunities for Entrepreneurs and Investors, and Tax Deferral Strategies Utilizing the Delaware Statutory Trust (DST), available on Amazon and other retail outlets.

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