Keep reading to learn when the gift tax does and doesn’t apply to married couples.
What Is the Gift Tax?
Before getting into the specifics of when it does and doesn’t apply to married couples, it may be helpful to review the basics of the gift tax. This tax only applies to large gifts, and it’s usually paid by the person giving the gift, not the person receiving it. The Internal Revenue Service (IRS) determines the point at which the gift tax kicks in. This is known as the “annual exclusion,” or the annual amount of gifts that are excluded from the gift tax. For tax year 2022, the annual exclusion is $16,000, which means you can give up to $16,000 worth of gifts to someone without having to pay any gift tax. The annual exclusion applies on a per-recipient basis. That means you could give up to $16,000 to as many different people as you want without incurring a gift tax. For tax year 2023, the annual gift tax exemption limit is set at $17,000 per person. The gift tax is progressive, which means the rate increases as the size of the gift grows. The first $10,000 that is subject to the gift tax is taxed at a rate of 18%. Amounts above $10,000 are taxed at a higher rate, which tops out at 40% for gifts of more than $1 million.
Does the Gift Tax Apply to Married Citizens?
In general, the IRS doesn’t involve itself when spouses transfer assets to and from one another. When one citizen gives a gift to their spouse who is also a citizen, it falls under the jurisdiction of the unlimited marital deduction, and it hardly ever triggers a need to pay a gift tax. This applies both during your lifetime and upon your death.
Defining a Gift’s “Interest”
The IRS categorizes gifts into three categories: present interest gifts, future interest gifts, and terminable interest gifts. A gift to your spouse qualifies for the unlimited marital deduction if they have a “present interest” in the gifted property. This means you must give the property over to them entirely for their use, enjoyment, and benefit—free from any strings attached. They take sole title to the gift if it’s real or tangible property. “Future interest” gifts are also usually covered by the unlimited marital deduction. A future interest gift is one that your spouse won’t have full use and enjoyment of until some future point in time. A “terminable interest” gift is one that can end at some future point in time due to a contingency. This is one of the few types of spousal gifts that can be subject to a gift tax. You must pay a gift tax on a gift to your citizen spouse if it’s a terminable interest gift that doesn’t qualify as a life estate under the power of appointment.
What Happens When a Spouse Isn’t a Citizen?
When your spouse isn’t a citizen, there’s a ceiling to how much you can give without paying a gift tax. However, the annual exclusion amount for gifts specifically made to non-citizen spouses isn’t the same as the annual exclusion amount for others. While you can give up to $16,000 to anyone without incurring a gift tax, you can give even more—up to $164,000 in 2022 and 175,000 in 2023—to your non-citizen spouse without incurring a gift tax. In addition to the annual exclusion limits, couples with one non-citizen spouse are also subject to any gift taxes that would apply to two married citizens (this mostly applies to terminable interest gifts that don’t qualify as a life estate under the power of appointment). When spouses jointly make gifts to the same recipient (known as “gift splitting”) they must file Form 709 with the IRS and consent to splitting the gift. While gift splitting, both spouses also need to file individual gift tax returns.
