IRC 2513: Gift-Splitting Election, All-or-Nothing Rule, and Liability

The gift-splitting election under Internal Revenue Code Section 2513 lets a married couple treat any gift made by one spouse to a third party as if half came from each spouse, which effectively doubles the annual gift tax exclusion for that recipient. For 2026, the annual exclusion is $19,000 per recipient, so a couple that elects to split gifts can transfer up to $38,000 to each person without owing gift tax or drawing down either spouse’s lifetime exemption.¹ The election is simple to make and hard to undo, and it carries a few consequences most couples don’t see coming.

Who Can Split Gifts

Four conditions must all be true when the gift is made:

The couple must be legally married to each other at the moment of the gift.
Each spouse must be a U.S. citizen or resident. A non-citizen living in the United States qualifies; a non-citizen living abroad does not.
The gift must go to someone other than the donor’s spouse. Transfers between spouses are already covered by the unlimited marital deduction.
Neither spouse may remarry someone else during the remainder of the calendar year.

Divorce mid-year does not automatically disqualify the election. What controls is remarriage. A couple that makes a $50,000 gift to their child in March and divorces in September can still split that March gift, provided neither one remarries before December 31. Gifts made after the divorce cannot be split because the couple was no longer married when those transfers happened.²³

If a Spouse Dies During the Year

The election survives the death of a spouse for gifts made while both were alive. The decedent’s executor signs the consent. Gifts the surviving spouse makes after the date of death cannot be split, and if no executor has been appointed by the filing deadline, no one has authority to consent for the decedent.³

How to Make the Election

Gift splitting is never automatic. The donor spouse files Form 709, the federal gift tax return, and reports the full value of each gift on Schedule A with the split amount shown in the appropriate column. The return must be filed even if every gift falls below the annual exclusion once split. The IRS is explicit: a return is required to make the election regardless of amount.⁴ Skipping the filing because the numbers look small defeats the election entirely.

Starting with the 2025 form, the consenting spouse no longer signs the donor’s return. Instead, the consenting spouse signs a separate Notice of Consent that gets attached to the return. The notice must be dated and must state that the consenting spouse elects to treat all third-party gifts as made one-half by each spouse. If both spouses made gifts during the year, each executes a Notice of Consent to attach to the other’s return.⁴

Form 709 is due April 15 of the year after the gift. A Form 4868 extension of your income tax return automatically extends the gift tax return as well. If you don’t need an income tax extension, Form 8892 gives you a separate six-month extension for the gift tax return alone.⁵ An extension buys time to file, not time to pay.

The All-or-Nothing Rule

Once you elect to split gifts for a calendar year, the election applies to every qualifying third-party gift made by either spouse during that year. You cannot pick and choose which gifts to split.³ If one spouse made a gift that benefits from splitting while the other made a separate gift that would have been better left alone, the election still sweeps in both. Think through the entire year’s giving before consenting.

Joint and Several Liability

This is the risk most couples never consider. Electing to split gifts makes both spouses jointly and severally liable for the full gift tax owed for the calendar year, not just the tax on the split gift.² The IRS can collect the entire amount from either spouse regardless of who actually made the gift. If your spouse made other taxable gifts during the year that you didn’t know about, you are on the hook for the tax, penalties, and interest on those transfers.

For couples with shared finances and shared goals, this rarely causes problems. In marriages with separate business interests, independent giving patterns, or any strain, the exposure is real. Know the full scope of your spouse’s giving for the year before signing the Notice of Consent, because unawareness of a particular gift will not unwind the liability afterward.

Gifts to Trusts Where the Other Spouse Is a Beneficiary

Splitting gets complicated when the trust receiving the gift names the non-donor spouse as a possible beneficiary. This is where practitioners see the most problems.

General Power of Appointment

The statute prohibits splitting altogether when the donor gives the other spouse a general power of appointment over the transferred property, meaning the power to direct property to themselves, their estate, or their creditors. If the trust instrument grants that kind of control, no part of the gift can be split.²

Discretionary Beneficiary

When the non-donor spouse is merely a discretionary beneficiary without a general power of appointment, the Treasury Regulations require that the other beneficiaries’ interests be “ascertainable and severable” from the spouse’s interest. If they cannot be separated, no part of the transfer qualifies for split treatment.³ Trusts sometimes preserve eligibility by limiting distributions to the non-donor spouse under an ascertainable standard (health, education, support, or maintenance) and by structuring facts so distributions to the spouse are very unlikely. The cleaner approach is to exclude the non-donor spouse from the trust entirely.

Crummey Withdrawal Powers

If the non-donor spouse holds a Crummey withdrawal power, the portion of the gift subject to that withdrawal right cannot be split. Portions withdrawable by other beneficiaries can still qualify. On a $43,000 contribution to a trust where the non-donor spouse has a $5,000 withdrawal power and each of two children has a $19,000 power, the spouse’s $5,000 portion is excluded from splitting while the remaining $38,000 can still be split.

Community Property Couples

If you live in a community property state, your starting point is different. A gift made from community property is already treated as made half by each spouse without any election, and each spouse files their own Form 709 for their half.⁴

The election matters in community property states only when one spouse gives away separate property, such as assets received individually as a gift or inheritance during the marriage.⁶ Because of the all-or-nothing rule, electing to split a separate-property gift also affects the treatment of any other third-party gifts made that year, so weigh the full picture before consenting.

Revoking the Election

Once made, the election is difficult to reverse. Either spouse may revoke by filing a signed statement of revocation, but only on or before April 15 of the year after the gift.⁷ If the consent was first given after April 15, for example on a return filed under extension, the regulations provide no right of revocation and the election is immediately permanent. Separately, the IRS will not accept a consent to split gifts once a notice of deficiency has been issued to either spouse for that year’s gift tax.² Decide before you file, and be certain.

Adequate Disclosure Starts the Clock

Filing Form 709 opens a three-year window during which the IRS can challenge the value of a reported gift. That clock only starts if the gift is adequately disclosed, which means the return or an attached statement must describe the property, identify the transferor and each recipient and their relationships, provide trust details and terms where applicable, and explain how fair market value was determined, including appraisals or supporting financial data.⁸ An inadequately disclosed gift can be assessed at any time, with no expiration. For split gifts, that risk hits both spouses through joint and several liability, so thorough disclosure is worth the effort.

Front-Loading a 529 Plan

The most popular use of gift splitting involves 529 college savings plans. A donor can contribute up to five years of annual exclusion gifts to a single beneficiary’s 529 account in one lump sum and elect to spread the gift evenly over five years for tax purposes. For 2026, one person can contribute up to $95,000 ($19,000 × 5) to a beneficiary’s 529 plan without exceeding the annual exclusion in any of those years.

Combined with gift splitting, a married couple can put $190,000 into a single beneficiary’s 529 plan in one contribution, treating each spouse as having given $19,000 per year for five years. The donor must file Form 709 for the contribution year and make the five-year election, and both spouses must consent to gift splitting for each of those five years.⁴ Additional gifts to that same beneficiary from either spouse during the five-year spread can push a year over the exclusion and create a taxable gift, so plan the giving calendar accordingly.

1
Internal Revenue Service. What’s New — Estate and Gift Tax
2
Office of the Law Revision Counsel. 26 USC 2513 – Gift by Husband or Wife to Third Party
3
eCFR. 26 CFR 25.2513-1 – Gifts by Husband or Wife to Third Party Considered as Made One-Half by Each
4
Internal Revenue Service. Instructions for Form 709 (2025)
5
Internal Revenue Service. Instructions for Form 8892 (12/2024)
6
Internal Revenue Service. Publication 555, Community Property
7
govinfo.gov. 26 CFR 25.2513-3 – Revocation of Consent
8
eCFR. 26 CFR 301.6501(c)-1 – Exceptions to General Period of Limitations on Assessment and Collection