Updated July 28, 2026. Quick answer: IRC §1041(a) suppresses gain on a transfer between spouses or incident to divorce, and §1041(b) gives the transferee the transferor’s adjusted basis. There is no step-up. So two assets with the same value today carry different embedded tax, and the difference is invisible on the balance sheet the settlement is negotiated from.
The problem in one line
A settlement that divides assets by market value divides the pre-tax position equally and the after-tax position unequally — by exactly the difference in built-in gain.
| Asset | Value today | Basis | Embedded gain |
|---|---|---|---|
| Cash | Same | Same as value | None |
| Long-held stock | Same | Low | Large |
| Recently bought fund | Same | Near value | Small |
| Retirement account | Same | — | Every dollar is pre-tax |
The retirement-account row is the one most often mispriced. A dollar in a traditional 401(k) is worth materially less than a dollar in a taxable brokerage account, because every dollar of it will be taxed as ordinary income on the way out. Splitting “half the investments and half the 401(k)” is roughly fair. Trading the whole 401(k) against an equal figure of taxable assets is not.
What to ask for instead of a value
Basis, for every non-cash asset on the schedule. It is a question the other side’s disclosure should already answer, it costs nothing to ask, and it is the difference between dividing value and dividing money.
The deferral only applies where the transfer qualifies — and the safe harbour for that is narrower and later than most people are told.
Sources
IRC §1041(a), (b), (c) and Temp. Reg. §1.1041-1T(b) Q&A-7; §414(p); §72(t)(2)(C) and §72(t)(3)(A); §408(d)(6); §121(a), (b), (d)(3); §7703(a) and (b); §152(e); §2(b)(1)(A)(i); §32(c)(3)(A); §21(e)(5); the repeal of §§71 and 215 by Pub. L. 115-97 §11051 and its effective-date note; IRS Form 8332 (current revision). All read July 2026.
This states what the cited authority says. It is not tax advice, and retirement-plan design turns on facts about your business and your other entities that no page can see. Every dollar limit referenced here is indexed and changes annually.