In 1995 the Arizona legislature authorized a husband and wife to hold title to their home (and other real property and even personal property such as stocks and bonds) as community property with right of survivorship (“CPWROS”).
Prior to this 1995 Arizona real estate law a husband and wife either held title to their home as community property (“husband and wife”) or, most commonly, as joint tenants with right of survivorship (“JTWROS”). Community property had the tax advantage of a step-up in basis of both halves of the home when the surviving spouse sold the home, but had the disadvantage of requiring probate. JTWROS had the tax disadvantage of a step-up in basis of only the deceased spouse’s one-half interest in the home, but had the major advantage of transferring title to the home to the surviving spouse without any requirement of probate. The purpose of the 1995 legislation authorizing CPWROS was to have the “best of both worlds,” namely, after the death of the first spouse a step-up in basis of both halves of the home, but without probate.
The following simplified example will illustrate the importance of a step-up in basis of both halves of the home. A husband and wife buy a home for $40,000 (each has a basis of $20,000). Ten years later the husband dies and the home is now worth $100,000. The wife then sells the home for $100,000.
If the home is JTWROS property, only the deceased husband’s one-half interest will be deemed by the IRS to have a step-up in basis, and the wife will have a taxable gain of $30,000 ($100,000 sale price less deceased husband’s 100% step-up in basis to $50,000 less wife’s original basis of $20,000).
If the home is CPWROS property, both halves will be deemed by the IRS to have a step-up in basis, and the wife will have no taxable gain ($100,000 sale price less deceased husband’s 100% step-up in basis to $50,000 less wife’s 100% step-up in basis to $50,000).
In addition to the tax advantage of owning real property as CPWROS, as opposed to JTWROS, CPWROS real property can only be sold or mortgaged with the consent of both the husband and the wife. JTWROS real property can be sold or mortgaged by either spouse without the consent or even the knowledge of the other spouse.
If a husband and wife want to transfer the title to a home or other real property from JTWROS to CPWROS, they should contact the title insurance company that insured the title at the time of closing. The title insurance company will normally prepare the necessary transfer documentation for a minimal fee, generally less than $250.
Note: Since 1997 a husband and a wife have the $500,000 capital gain exemption on the sale of a principal residence. This $500,000 capital gain exemption is generally available after the death of one of the spouses if a joint tax return is filed and the principal residence is sold in the year of death. Otherwise, the $250,000 capital gain exemption is only available. Therefore, a husband and wife holding title to their home as CPWROS is not as important as with other types of real property, unless there has been significant appreciation of at least $250,000 in the value of the home.