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V2742-23 9 October 2023 · SG de Impuestos sobre la Renta de las Personas Físicas Criterion in force
IRPF · vivienda habitual

Exemption for primary residence may apply after divorce if the remaining spouse maintains residency

A query was raised regarding whether an ex-spouse who leaves the family home following a divorce can still benefit from reinvestment or over-65 exemptions. The DGT clarified that, in accordance with Supreme Court jurisprudence, the property is considered the primary residence for both parties if the spouse remaining in the home maintains it as their residence.

The question raised

Whether the residence, in the case of the former spouse, is considered habitual for the purposes of applying the reinvestment exemption or the exemption under Article 33.4.b)

The DGT's ruling

In cases of separation, divorce, or annulment that compel a spouse to leave the domicile, the requirement of effective occupation of the habitual residence shall be deemed met if said building constituted the habitual residence of the spouse who remained in it at the time of the transfer or during the two preceding years. Therefore, the spouse who leaves the residence may also benefit from the exemptions provided in Articles 33.4.b) and 38 of the LIRPF.

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