Both spouses will be able to use the exceptions when selling their shared home in the event of a divorce

He Supreme Court agreed to extend the same tax exemptions in personal income tax to spouses who reinvest in living place capital gains from property transfers after divorce.

He did so with a judgment dated May 5, in which he rejects the postulates of the General State Administration, which denied that right to one of the spouses, considering that they did not stay in the property long enough as prescribed by law.

The case dates back to April 11, 2000, when FSG and his partner bought a house in the town of Requena in Valencia. Things went wrong between the couple and in 2005 they decided to separate and sign a divorce.

Her husband remained in charge of the two children, and all three remained in the family home. In the same year, FSG bought another property to live on his own.

In 2017, the family sold the house, a moment that FSG used to reinvest his share in the purchase of another property to use as his main residence.

2018, during the presentation income statementhe claimed a deduction for reinvestment in habitual residence and one capital gains exemption which he acquired by selling the family property where he lived until 2005.

However, the Administration rejected this possibility, stating that he should have lived in the sold house for at least two years before its transfer, ignoring that the taxpayer had to leave it due to force majeure.

FSG appealed against the liquidation and the Supreme Court of the Community of Valencia agreed with it. However, the State Attorney appealed to the highest instances to prevent him from enjoying the exemption.

This same month, the Supreme Court decided to reject his appeal, agreeing with the person in question. And he did so by establishing judicial practice and determining that in situations of separation, divorce or annulment of marriage that would force one of the spouses to cease the actual use of the habitual residence, abandon property, “the requirement for the effective occupation of the habitual residence at the time of transfer (sale) or any given in the two years before it, will be considered fulfilled when such a situation occurs with the spouse who remained in it.

Therefore, it would be enough for one of the two to fulfill this condition in order for both of them to benefit from the tax exemption.