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V0326-24 6 March 2024 · SG de Impuestos sobre la Renta de las Personas Físicas Criterion in force
IRPF · exención por reinversión

Reinvestment exemption for main residence applicable after divorce if ex-spouse remains in the property

A taxpayer inquired whether their property still qualified as a main residence for the purpose of the reinvestment exemption after being forced to vacate it due to a divorce. The Directorate General of Taxes (DGT) ruled that, according to Supreme Court case law, the property retains its status as a main residence if the other spouse remains living in it.

The question raised

Whether, during the years in which the taxpayer was compelled to leave the dwelling, it has maintained its status as habitual for them and therefore the exemption for reinvestment may be applied in the event of a sale.

The DGT's ruling

In cases of separation, divorce, or annulment that compel a spouse to leave the domicile, it shall be understood that they transfer their habitual residence if the other party remained in it. The requirement of effective occupation is met if the dwelling constitutes the residence of the spouse who remained at the time of the transfer or during the two preceding years. Furthermore, the calculation of the three-year residence period is not fragmented by the dissolution of the community, but is instead counted from the acquisition of the undivided share.

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