Overview: What IRC 2513 Does and Why It Matters

IRC 2513 is the statutory authority for the gift-splitting election -- one of the most widely used techniques in gift tax planning for married couples. In brief, the provision permits a married couple to elect to treat any gift made by one spouse to a third party as if it had been made one-half by each spouse. The election does not require that the gifted assets be jointly owned; a donor spouse can transfer property from their own separate assets, and the non-donor spouse can consent to have that transfer treated as made equally by both.

The benefit is direct: because each spouse is treated as the transferor of one-half of the gift, both spouses' annual exclusions and unified credits become available to offset the gift. Without gift splitting, only the donor spouse's exclusion and credit apply. The strategy is particularly valuable when one spouse holds the bulk of the family's assets and the other has substantial unused gift tax exclusion capacity.

Under the OBBBA's permanent $15 million per-person exclusion (indexed for inflation; verify at IRS.gov and consult independent counsel, as these provisions are recently enacted and implementation guidance may be pending), a properly structured gift-splitting program allows a married couple to transfer up to $30 million (indexed; verify at IRS.gov and consult independent counsel) during lifetime before any gift tax is owed -- in addition to annual exclusion gifts each year.

Practice Note: Verify All Figures Before Advising

Dollar amounts in this guide (annual exclusion, applicable exclusion amount, non-citizen spouse exclusion, 529 superfunding limits) are indexed for inflation and updated annually. Verify every figure at IRS.gov and in current IRS publications before advising any client. No figure in this guide should be treated as authoritative for a specific tax year without independent verification.

Statutory Requirements for the Gift-Splitting Election

IRC 2513(a)(1) sets out the conditions that must be satisfied before a married couple may elect gift splitting. All of the following must be met at the time each gift is made (verify all requirements at IRS.gov):

  • Both spouses must be US citizens or residents. If either spouse is a nonresident alien at the time the gift is made, the election is not available for gifts made while that status applies. Residency status is determined under the gift tax rules; verify current residency standards at IRS.gov.
  • The spouses must be legally married to each other at the time of the gift. Gifts made before the couple married during the same calendar year, or after a divorce during the same calendar year, cannot be split. The marriage must be legally recognized; verify current rules on recognition of marriage for federal tax purposes at IRS.gov.
  • Neither spouse may remarry during the calendar year. If a spouse dies and the survivor remarries later in the same calendar year, the remarriage can limit which gifts are eligible to be split. Verify the interaction between remarriage and gift-splitting eligibility at IRS.gov.
  • The gift must be to a third party. Gifts between spouses are not subject to gift tax in most circumstances (unlimited marital deduction applies for gifts to a US-citizen spouse under IRC 2523) and cannot be split.
  • Both spouses must consent. The election is made by both spouses signifying consent on Form 709 for the applicable calendar year. The consent of the non-donor spouse is the operative act that invokes the statute.

The "All or Nothing" Rule

A critical feature of the IRC 2513 election is that it applies to all gifts made by either spouse to third parties during the entire calendar year -- not to individual selected gifts. A couple cannot cherry-pick which gifts to split. If the election is made, every qualifying gift made by either spouse during that year is split, including gifts the non-donor spouse independently made to third parties. The practical consequence: the non-donor spouse's own gifts to third parties are also halved for gift tax purposes, with one-half attributed to the donor spouse. Verify the scope and application of the all-or-nothing rule at IRS.gov before advising clients.

Practice Note: The "All or Nothing" Rule Cuts Both Ways

If the non-donor spouse has made gifts of their own to third parties during the year, those gifts are also split when the election is made -- meaning the donor spouse is treated as having made one-half of the non-donor spouse's gifts. Practitioners should review all gifts made by both spouses before recommending the election, particularly if the non-donor spouse made large gifts that could push the donor spouse into a taxable gift position after splitting. Verify all implications of the all-or-nothing rule at IRS.gov.

How the Election Works: Annual Exclusion Doubling and Unified Credit

Doubling the Annual Exclusion

After a valid gift-splitting election, each spouse is treated as the transferor of one-half of the gift. Because the annual exclusion under IRC 2503(b) applies per transferor per donee, both spouses' exclusions are available for their respective halves. For 2026, the annual exclusion is $19,000 per donee (verify the current indexed amount at IRS.gov). After splitting, each spouse's $19,000 exclusion applies to their half of the gift -- allowing $38,000 to be transferred to a single donee free of gift tax through the combined annual exclusions alone (verify the current indexed combined amount at IRS.gov).

This means a married couple can transfer $38,000 per donee per year to any number of donees without gift tax and without consuming any unified credit. With ten donees, the total annual exclusion gifts equal $380,000 per year (verify at IRS.gov). These amounts are separate from and in addition to direct tuition and medical payments excluded under IRC 2503(e).

Application of the Non-Donor Spouse's Unified Credit

For gifts that exceed the doubled annual exclusion, the non-donor spouse's unified credit under IRC 2505 is available to offset the gift tax on their allocated half. If the donor spouse has already used a substantial portion of their own unified credit on prior taxable gifts, the non-donor spouse's unused credit is a meaningful shield -- even though the underlying assets came entirely from the donor spouse. The non-donor spouse's remaining applicable exclusion amount is applied against their allocated half of the gift on their own Form 709.

Practitioners should model both spouses' remaining applicable exclusion amounts before recommending a large split gift, to confirm neither spouse inadvertently exhausts their credit and creates an out-of-pocket gift tax liability. Verify current unified credit amounts and computation at IRS.gov.

Planning Note: Gift Splitting Is Most Valuable When Credits Are Unequal

Gift splitting delivers the greatest benefit when one spouse has substantially more unused unified credit than the other, or when one spouse holds almost all the family's assets while the other has made few prior taxable gifts. In those circumstances, the election shifts half the gift to the spouse with the most remaining credit capacity, potentially allowing the couple to transfer twice as much without gift tax than the donor spouse alone could. Verify each spouse's prior taxable gift history and remaining credit before advising on the election.

Consent Mechanics on Form 709

The gift-splitting election is made on Form 709 (United States Gift (and Generation-Skipping Transfer) Tax Return). The mechanics require specific action on both spouses' returns (verify current Form 709 instructions at IRS.gov before filing):

Donor Spouse: Part 1, Line 12

The donor spouse answers "Yes" to the question on Part 1, line 12 of Form 709, which reads: "Do you consent to have the gifts made by you and your spouse considered as made one-half by each of you?" Answering "Yes" triggers the gift-splitting election for the calendar year for all qualifying gifts by both spouses. The donor spouse then lists all gifts made during the year on Schedule A, with the split-gift amounts reflected in the appropriate columns. Verify current Form 709 line numbers and instructions at IRS.gov, as form layouts may change.

Non-Donor Spouse: Part 3 (Consents of Spouse)

The non-donor spouse must sign Part 3 (Consents of Spouse) of the donor spouse's Form 709, or alternatively file their own Form 709 consenting to the election. The non-donor spouse's signature in Part 3 is the legal consent that activates the IRC 2513 election. Without this signature, the election is not valid. If the non-donor spouse has gifts of their own to report, they file a separate Form 709 that mirrors the election. Verify the specific consent and signature requirements in the current Form 709 instructions at IRS.gov.

Reporting the Non-Donor Spouse's Half

Once the election is made, the non-donor spouse files their own Form 709 reporting their allocated one-half of each split gift made by the donor spouse (and one-half of any gifts the non-donor spouse independently made to third parties). The non-donor spouse claims their own annual exclusion against their allocated half and applies their own unified credit if the taxable gift after exclusions exceeds zero. Both returns must be consistent in the gift amounts reported. Verify current reporting requirements and Form 709 preparation guidance at IRS.gov.

Filing Requirements When Gift Splitting Is Elected

Both Spouses Must File Form 709

When a gift-splitting election is made, both spouses are required to file Form 709 for the calendar year -- regardless of whether the non-donor spouse made any gifts independently. This requirement flows from the fact that the election treats the non-donor spouse as having made one-half of every split gift; that deemed transfer creates its own filing obligation. A return that only the donor spouse files, even if it reports all split amounts, does not satisfy the non-donor spouse's independent filing obligation. Verify current filing requirements at IRS.gov.

Due Date and Extensions

Form 709 is generally due April 15 of the calendar year following the calendar year in which the gifts were made. An extension of time to file the federal income tax return (Form 4868) automatically extends the Form 709 due date to October 15; no separate extension form is required solely for the gift tax return filing extension. However, an extension to file does not extend the time to pay any gift tax that is due. Any gift tax owed must be paid by the original April 15 due date to avoid interest and penalties. Verify current due dates, extension procedures, and payment requirements at IRS.gov.

Special Rule: Deceased Spouse's Estate

If a spouse dies before the Form 709 due date and before the non-donor spouse consents, the personal representative of the deceased spouse's estate may be able to consent on behalf of the estate, subject to the applicable IRS procedures and filing deadlines. The estate's ability to file a Form 709 for the deceased spouse, and the deadline for that filing, are governed by IRS rules that practitioners should verify at IRS.gov and review with qualified estate counsel before relying on any such extension of the consent deadline.

Practice Note: Do Not Wait Until April 15 to Coordinate Both Returns

Because both spouses must file Form 709 and both returns must report consistent gift amounts, practitioners should coordinate the preparation of both returns well before the due date. A mismatch between the donor spouse's and non-donor spouse's Forms 709 on split-gift amounts can trigger IRS inquiries and require amended returns. Draft both returns simultaneously and cross-check all Schedule A entries before filing either. Verify current consistency requirements at IRS.gov.

Interaction with the Annual Exclusion (IRC 2503(b))

The annual exclusion under IRC 2503(b) is a per-donee, per-transferor exclusion that applies to present-interest gifts. After a gift-splitting election, each spouse is treated as a separate transferor of one-half of each qualifying gift, so each spouse's annual exclusion applies independently to their half. The combined effect doubles the per-donee exclusion for the couple.

Present-Interest Requirement

The annual exclusion applies only to gifts of a present interest -- a right to immediate use, possession, or enjoyment. Gifts to trusts that do not include Crummey withdrawal rights or other present-interest mechanisms do not qualify for the annual exclusion, even after gift splitting. Gift splitting does not convert a future-interest gift into a present-interest gift; it only splits an otherwise qualifying present-interest gift between both spouses' exclusion pools. Verify current present-interest requirements and Crummey trust rules at IRS.gov.

Crummey Trust Contributions

Gifts to trusts that include valid Crummey withdrawal rights are treated as present-interest gifts to the extent of each beneficiary's withdrawal right. These contributions can be split under IRC 2513, allowing the combined annual exclusion to apply. For a trust with one beneficiary, the couple can contribute $38,000 per year (2026; verify the current indexed amount at IRS.gov) covered entirely by the split annual exclusions, assuming proper Crummey notice procedures are followed. Verify current Crummey trust requirements, notice timing, and the interaction with gift splitting at IRS.gov.

529 Plan Superfunding with Gift Splitting

IRC 529(c)(2)(B) permits a donor to elect to treat a lump-sum 529 contribution as made ratably over five calendar years (superfunding or front-loading). In 2026, a single donor can contribute up to $95,000 to a 529 for one beneficiary (five times the $19,000 annual exclusion; verify the current indexed amount at IRS.gov) under the superfunding election without a taxable gift. With a gift-splitting election, a married couple could potentially superfund up to $190,000 per beneficiary (verify all amounts at IRS.gov), with each spouse using their own annual exclusion for their allocated half over the five-year period. Both the superfunding election and the gift-splitting election must be reported on Form 709 in the election year. Verify current 529 superfunding rules and the interaction with gift splitting at IRS.gov before advising clients.

Interaction with the Unified Credit and OBBBA

The OBBBA Permanent Exemption

The One Big Beautiful Act (OBBBA) permanently raised the applicable exclusion amount to $15 million per person (indexed for inflation; verify the current indexed 2026 amount at IRS.gov and consult independent counsel, as these provisions are recently enacted and implementation guidance may be pending). This exclusion is the gift-tax and estate-tax side of the unified credit under IRC 2505 and IRC 2010. A single individual can shelter up to $15 million (indexed) of cumulative taxable gifts from gift tax during their lifetime, in addition to annual exclusion gifts.

Combined Couple Capacity with Gift Splitting

With the gift-splitting election, a married couple can effectively deploy both spouses' $15 million exclusions against gifts made from one spouse's assets. In practical terms: if Spouse A has $30 million of assets and Spouse B has minimal assets, the couple can use gift splitting to transfer gifts that consume both Spouse A's and Spouse B's unified credits, allowing up to $30 million (indexed; verify at IRS.gov and consult independent counsel, as these provisions are recently enacted and implementation guidance may be pending) of lifetime transfers before gift tax applies, plus annual exclusion amounts.

Portability of the deceased spouse's unused exclusion (DSUE) under IRC 2010(c)(2) operates alongside but separately from gift splitting. Portability allows the surviving spouse to use the deceased spouse's unused exclusion at death; gift splitting deploys both spouses' credits during life. The two strategies are complementary but distinct. Verify current portability rules and the interaction with OBBBA amounts at IRS.gov and consult independent counsel.

GST Implications of Split Gifts

When a gift that would otherwise be subject to generation-skipping transfer (GST) tax is made and a gift-splitting election is in effect, the GST consequences are allocated between both spouses. This coordination is one of the more complex aspects of gift splitting involving trusts with skip-person beneficiaries.

Transferor Status After Splitting

Under IRC 2652(a), the transferor for GST purposes is generally the person who made the transfer for gift tax purposes. After a split-gift election under IRC 2513, each spouse is treated as the transferor of one-half of the gift, meaning each spouse is the GST transferor for their respective half. The donor spouse's GST exemption allocation on their Form 709 covers their half; the non-donor spouse's GST exemption allocation on their Form 709 covers their half. Verify current GST transferor rules following a split-gift election at IRS.gov.

Coordinating GST Exemption Allocations

Because each spouse is a separate transferor, each spouse must independently allocate GST exemption on their own Form 709 if the gift is to a skip person or a trust that may benefit skip persons. The automatic allocation rules under IRC 2632 may apply to direct skips and indirect skips to GST trusts; verify how automatic allocations interact with split gifts at IRS.gov. Practitioners should prepare both spouses' Forms 709 simultaneously to ensure the GST exemption allocations are coordinated and that the combined allocation covers the full gift if full GST protection is desired.

The Non-Donor Spouse's GST Exemption

A significant benefit of the split-gift election for GST planning is that it makes the non-donor spouse's GST exemption available to shield gifts funded entirely from the donor spouse's assets. Without splitting, only the donor spouse's GST exemption would be available. After splitting, both spouses' GST exemption pools are accessible. Given that the OBBBA also affected the GST exemption (verify current GST exemption amounts at IRS.gov and consult independent counsel, as these provisions are recently enacted and implementation guidance may be pending), coordinating the split-gift election with the GST exemption allocation can substantially increase the amount of property that passes to grandchildren and more remote descendants free of GST tax. Verify all GST implications at IRS.gov before advising.

Revocation of the Gift-Splitting Election

The general rule under IRC 2513 is that a gift-splitting election is irrevocable once made. This means that once both spouses consent on Form 709 and the applicable return due date (with extensions) passes, the election stands for the entire calendar year and cannot be undone. This irrevocability is a significant planning consideration because the election attributes one-half of all qualifying gifts to the non-donor spouse, affecting that spouse's unified credit and potential gift tax exposure.

The Limited Revocation Exception

Treas. Reg. Section 25.2513-3 provides a narrow exception: a gift-splitting election may be revoked if both of the following conditions are met. First, a timely amended return is filed before the due date of the original return (including extensions). Second, there was no gift made during the calendar year that could not have been made (that is, would have been legally invalid) without the consent of the non-donor spouse. This exception is intended to cover situations where, under state property law, a transfer required the non-donor spouse's legal consent and the election was made unnecessarily -- not situations where the couple simply changed their minds about the tax strategy. Verify the precise scope of this exception under Treas. Reg. Section 25.2513-3 and current IRS guidance at IRS.gov before advising a client on revocation.

Practitioners should advise clients of the narrow and time-limited revocation window before obtaining the non-donor spouse's consent on Form 709. Once the return due date (with extensions) closes, there is no mechanism to undo the election regardless of the parties' intent or changed circumstances. Confirm that the revocation exception does not apply before treating the election as final. Verify the current revocation rules and any IRS guidance at IRS.gov.

Death of a Spouse During the Calendar Year

When one spouse dies during the calendar year, special rules under IRC 2513(a)(2) govern which gifts remain eligible for splitting and which do not. Practitioners must apply these rules carefully because a mid-year death creates multiple distinct time periods with different gift tax treatment.

Gifts Made During the Marriage: Eligible for Splitting

Gifts made by either spouse to a third party during the period when both spouses were alive and married to each other are eligible for the gift-splitting election. The personal representative (executor) of the deceased spouse's estate can consent to the election on behalf of the deceased spouse's estate for these gifts. The consent requirements -- and the deadline by which the estate must act -- are governed by applicable IRS procedures. Verify the current procedures for a deceased spouse's estate to consent to gift splitting at IRS.gov.

Gifts Made After the Spouse's Death: Not Eligible

Gifts made by the surviving spouse after the date of the first spouse's death cannot be split with the deceased spouse, because the couple was no longer married at the time of those gifts. IRC 2513(a)(1) requires that the spouses be married at the time the gift is made. The surviving spouse's gifts after the date of death are treated solely as the surviving spouse's gifts, and only the surviving spouse's annual exclusion and unified credit apply. Verify current post-death gift treatment at IRS.gov.

Remarriage During the Calendar Year

If the surviving spouse remarries during the same calendar year as the first spouse's death, the surviving spouse cannot split gifts made after the remarriage with either the deceased first spouse or the new spouse (because the year-end rule for remarriage applies). Gifts made during the period when neither spouse had died or divorced may be split with the first spouse. Verify the current rules for remarriage during the calendar year and gift-splitting eligibility at IRS.gov.

Gift-Splitting Scenario Comparison Table

The following table illustrates how the IRC 2513 gift-splitting election applies across 11 common scenarios. All dollar amounts are illustrative and based on 2026 indexed figures; verify all figures at IRS.gov before advising any client.

Scenario Gift Amount / Structure Without Gift Splitting With Gift Splitting (IRC 2513)
1. Donor spouse gifts $38,000 to one donee $38,000 outright to one donee; all from donor spouse's separate assets $19,000 annual exclusion; $19,000 is a taxable gift consuming donor's unified credit Each spouse's $19,000 exclusion covers their $19,000 half; no taxable gift, no credit consumed (verify current amounts at IRS.gov)
2. Donor spouse gifts $100,000 to one donee $100,000 outright to one donee; all from donor spouse's separate assets $19,000 annual exclusion; $81,000 taxable gift consuming donor's unified credit Each spouse allocated $50,000; each applies $19,000 exclusion; each has $31,000 taxable gift consuming that spouse's unified credit. Total taxable gifts: $62,000 split between both (verify at IRS.gov)
3. Trust contributions (non-Crummey) Contribution to an irrevocable trust with no Crummey withdrawal rights; future interest only No annual exclusion (future interest); full amount is taxable gift Gift splitting allocates half to each spouse, but neither half qualifies for annual exclusion (still a future interest); both spouses apply their unified credit to their half. No annual exclusion benefit from splitting (verify at IRS.gov)
4. UTMA / UGMA gifts $38,000 transfer to a UTMA or UGMA custodial account for one minor beneficiary $19,000 annual exclusion; $19,000 taxable gift consuming donor's credit Each spouse's $19,000 exclusion applies to their half; no taxable gift; UTMA/UGMA is a present-interest transfer (verify current present-interest treatment at IRS.gov)
5. Crummey trust contributions $38,000 contribution to an irrevocable trust with one beneficiary holding a $38,000 Crummey withdrawal right $19,000 annual exclusion; $19,000 taxable gift (only donor's exclusion applies against $38,000 Crummey right) Each spouse's $19,000 exclusion applies to their $19,000 half; no taxable gift; full $38,000 covered by combined exclusions (verify Crummey and present-interest requirements at IRS.gov)
6. 529 superfunding with gift splitting $190,000 lump-sum contribution to a 529 for one beneficiary; five-year election made $95,000 superfunding limit for one donor; $76,000 taxable gift after $19,000 exclusion in year one (and ratably each year after) With split, both spouses elect superfunding; $190,000 can be contributed ($38,000 per year combined over 5 years); each spouse covers their $19,000 annual ratable share with their own exclusion; no taxable gift if within limits (verify current amounts at IRS.gov)
7. Gifts to a non-citizen spouse Donor spouse transfers $200,000 to a non-citizen spouse Unlimited marital deduction does not apply; separate annual exclusion of $185,000 (2026 indexed; verify at IRS.gov) applies; $15,000 taxable gift Gift splitting is not available for gifts between spouses; IRC 2513 requires the gift to be to a third party, not to the other spouse. The $185,000 non-citizen spouse exclusion applies to the donor spouse alone (verify at IRS.gov)
8. Gift splitting with OBBBA $15M exemption Donor spouse (with $15M unused exclusion) gifts $5M to a trust; non-donor spouse has $14M unused exclusion $5M taxable gift; donor spouse consumes $5M of their $15M exclusion; non-donor spouse's exclusion is not used $2.5M allocated to each spouse; each applies their own exclusion; donor spouse consumes $2.5M of their credit; non-donor spouse consumes $2.5M of their credit; total credit consumed from combined pool is halved (verify OBBBA amounts at IRS.gov and consult independent counsel)
9. GST-taxable split gifts to a trust $2M gift to a trust for grandchildren; gift-splitting and GST exemption allocation required $1M taxable gift; donor spouse allocates $1M of GST exemption on their Form 709; non-donor spouse's GST exemption not available $1M allocated to each spouse; each spouse allocates $1M of their own GST exemption on their own Form 709; full $2M covered by combined GST exemption; non-donor spouse's GST exemption deployed for assets funded by donor spouse (verify at IRS.gov)
10. Death of donor spouse mid-year Donor spouse makes $100,000 gift in March; dies in June; surviving spouse makes no gifts March gift: only donor spouse's $19,000 exclusion; $81,000 taxable gift; no gift after death to split March gift (made while married): eligible for gift splitting; personal representative of donor spouse's estate can consent; $50,000 each; $31,000 each is taxable. Gifts made by survivor after June death: not eligible for splitting with deceased spouse (verify at IRS.gov)
11. Filing requirements summary Married couple makes split gifts; donor spouse made $100,000 in gifts; non-donor spouse made no independent gifts Only donor spouse files Form 709; non-donor spouse has no filing obligation Both spouses must file Form 709; donor spouse: Part 1 line 12 = Yes; non-donor spouse signs Part 3 of donor's return or files separately; non-donor spouse reports their $50,000 allocated half; April 15 due date (extendable); both returns must be consistent (verify at IRS.gov)

Frequently Asked Questions: IRC 2513 Gift Splitting Consent Election

Can gift splitting be used if one spouse is a non-US citizen?
IRC 2513 requires that both spouses be US citizens or residents at the time each gift is made. If the donor spouse is a US citizen but the non-donor spouse is a nonresident alien, the gift-splitting election is not available for gifts made while the non-donor spouse holds that status. Gifts to a non-citizen spouse also do not qualify for the unlimited marital deduction under IRC 2523; instead, a separate annual exclusion applies (the 2026 amount for gifts to a non-citizen spouse is $185,000, indexed; verify the current indexed amount at IRS.gov). Practitioners should verify residency status and applicable exclusion rules before advising clients on splitting elections involving a non-citizen spouse.
Does splitting a gift affect the donor spouse's GST exemption allocation?
Yes. When a gift-splitting election is made and the gift is to a skip person (or a trust that may benefit skip persons), the GST implications must be coordinated across both spouses' Form 709 returns. After the split election, each spouse is treated as the transferor of one-half of the gift for GST purposes. The donor spouse allocates GST exemption on their return for their half; the non-donor spouse allocates GST exemption on their return for their half. Failure to coordinate the GST exemption allocations across both returns can result in inadvertent GST exposure. Verify current GST exemption amounts, allocation procedures, and any automatic allocation rules under IRC 2632 at IRS.gov before advising on split gifts to skip persons or trusts with skip beneficiaries.
What happens if the non-donor spouse dies before consenting on Form 709?
If a gift is made during the year and the non-donor spouse dies before consenting to the gift-splitting election on Form 709, special procedural rules and timing questions arise. The personal representative of the deceased spouse's estate may be able to consent on behalf of the estate under applicable IRS procedures. The election deadline and the ability to file a late return for the deceased spouse's estate are governed by the general Form 709 rules, including any extensions available for the estate. Verify current IRS procedures for consenting on behalf of a deceased non-donor spouse, and the applicable filing deadlines, at IRS.gov and consult independent counsel for estate-specific guidance.
Can a 529 plan contribution be split using the IRC 2513 election?
Yes. A contribution to a 529 qualified tuition program funded entirely by one spouse can be split under IRC 2513, allowing both spouses' annual exclusions to apply. If the couple elects to treat the 529 contribution as made ratably over five years under the superfunding election, the gift-splitting and the five-year election must both be reported on Form 709, and the split applies to each year's ratable portion. In 2026, a donor spouse could contribute up to $95,000 to a 529 for one beneficiary under superfunding (5 times $19,000); with gift splitting, a married couple could potentially superfund $190,000 per beneficiary (verify all amounts and current rules at IRS.gov). Proper Form 709 reporting is required in the election year and for each year of the five-year ratable period. Verify current 529 superfunding rules, split-gift interaction, and Form 709 reporting requirements at IRS.gov.
Can a couple split gifts made before they were married during the same calendar year?
No. IRC 2513 requires that the spouses be married to each other at the time the gift is made. Gifts made before the couple was legally married cannot be split under IRC 2513, even if they marry later in the same calendar year. The gift-splitting election applies only to gifts made during the period in which the couple was married during the calendar year. Gifts made before the marriage date, or after a divorce or death of a spouse during the same calendar year, are not eligible to be split. Verify the applicable rules for the timing of marriage and gift-splitting eligibility at IRS.gov.
Is the gift-splitting election revocable after Form 709 is filed?
The IRC 2513 gift-splitting election is generally irrevocable once made on a timely filed Form 709 (including extensions). Under Treas. Reg. Section 25.2513-3, a limited exception exists: if no gift was made during the calendar year that could not have been made without the consent of the other spouse, the election may be revoked on an amended return filed before the due date of the original return (with extensions). Once the return due date (with extensions) has passed, the election is irrevocable regardless of circumstances. Consult current IRS guidance and Treas. Reg. Section 25.2513-3 for the precise revocation standard, and verify at IRS.gov before advising a client who wishes to revoke.
Does the non-donor spouse have to file Form 709 even if they made no gifts?
Yes. When a gift-splitting election is made under IRC 2513, both spouses must file Form 709 for the calendar year, even if the non-donor spouse made no independent gifts of their own. This is because the election treats the non-donor spouse as having made one-half of every gift made by the donor spouse, creating a potential gift tax liability and filing obligation for the non-donor spouse. The non-donor spouse's Form 709 reports their allocated one-half of each split gift, claims any annual exclusion available for their half, and applies their unified credit if the allocated amounts exceed the annual exclusion. Verify current filing requirements and the non-donor spouse's Form 709 obligations at IRS.gov.
How does the OBBBA $15 million exemption interact with gift splitting for married couples?
The One Big Beautiful Act (OBBBA) permanently raised the applicable exclusion amount to $15 million per person (indexed for inflation; verify the current indexed amount at IRS.gov and consult independent counsel, as these provisions are recently enacted and implementation guidance may be pending). With the gift-splitting election under IRC 2513, a married couple can effectively combine their unified credits to shelter gifts from both spouses' exclusion amounts. In practical terms, this means a married couple could transfer up to $30 million (indexed) during lifetime without gift tax by combining the two $15 million exclusions through gift splitting and portability -- in addition to annual exclusion amounts per donee. The exact available credit depends on each spouse's prior taxable gifts, portability elections, and current IRS guidance. Verify all OBBBA figures and the specific interaction with gift splitting at IRS.gov and consult independent counsel.
Disclaimer: This guide is for informational purposes only and does not constitute legal or tax advice. Federal gift tax law is complex, and provisions enacted by the One Big Beautiful Act (OBBBA) are recently enacted; implementation guidance from the IRS and Treasury may be pending and may alter the analysis described here. All dollar amounts, rate figures, and exclusion thresholds must be verified at IRS.gov and in current IRS publications before advising any client. Consult qualified legal and tax counsel for advice tailored to a specific client's facts, circumstances, and applicable jurisdiction. Americas Tax does not represent that any information on this page is current, complete, or free from error.