Updated October 8, 2026. Quick answer: No. Alabama is a common law state. At divorce, “The marital estate is subject to equitable division and distribution.” (Ala. Code 30-2-51), and at death the surviving spouse has a right of election. The IRS lists nine community property states.
Alabama community property at a glance
| Item | What the documents say |
|---|---|
| Regime | Common law |
| At divorce | The marital estate is subject to equitable division and distribution (Ala. Code 30-2-51) |
| At a spouse’s death | An elective share: the lesser of the estate less the survivor’s separate estate and one-third of the estate (Ala. Code 43-8-70) |
| Federal basis at the first death | A qualified joint interest between spouses: one-half is included in the estate and steps up |
| Source | Alabama Legislature (ALISON Code of Alabama API); IRS Publications 551 and 555; 26 U.S.C. 1014 |
What the Alabama statutes say
Alabama’s divorce section uses the terms marital estate and equitable division. It also lets the judge order an allowance: the court “may order to a spouse an allowance out of the estate” of the other, and it bars considering property acquired before the marriage or by inheritance or gift unless it was used regularly for the common benefit of the parties.
At divorce in Alabama
Equitable here is not equal: the judge decides the division and any allowance.
At a spouse’s death in Alabama
Under Ala. Code 43-8-70, the “surviving spouse has a right of election to take an elective share”. “The elective share shall be the lesser of” the decedent’s estate reduced by the survivor’s separate estate, or “One-third of the estate of the deceased.” For a decedent not domiciled in Alabama, subsection (c) leaves the survivor’s right in Alabama property to the law of the decedent’s domicile.
What it does to basis when the first spouse dies
Because Alabama is not on the IRS’s list of community property states, a couple’s basis at the first death depends on title. IRS Publication 551 says to “Include one-half of the value of a qualified joint interest” in the decedent’s gross estate, and the survivor’s basis is the cost of the survivor’s own half plus the basis in the half inherited. Property in the decedent’s name alone is different: 26 U.S.C. 1014(a) gives the heir a basis equal to the property’s fair market value at the date of the decedent’s death.
Computed illustration, not tax advice: suppose an Alabama couple paid $100,000 for shares held as a qualified joint interest, and the shares are worth $400,000 when one spouse dies. The survivor’s basis is the total of two halves: $200,000 for the half that steps up plus $50,000 as the cost of the survivor’s own half, which makes $250,000. A sale at $400,000 would then show a gain of $150,000. In a community property state the same facts would give a basis of the whole $400,000. CMG’s common law step-up page goes through the difference.
What the documents do not say
- The statute’s election deadline was not among the sections archived.
Common mistakes
- Assuming the survivor always gets a third; the share is the lesser of two amounts, and the survivor’s own separate estate reduces the first.
- Assuming the answer in this state settles it for a couple who move; the rules depend on the state where the spouses are domiciled and, for property in a trust, on the trust.
Related: why only half steps up in a common law state, Alabama retirement taxes, and Alabama probate cost.
Find the right next step for your situation
About how much do you have invested? Pick the range that fits; your next step appears immediately below.
Compare vetted advisors for couples estate planning
If your portfolio is $250,000 or more, this connects you (free, with no obligation to hire anyone) with 2 to 3 vetted advisors.
Before you start, what actually happens. The matching service is run by WiserAdvisor, an independent advisor-matching company. It opens on their site, asks for your ZIP code and a few questions, and matches you with 2 to 3 vetted advisors. It is free to you.
WiserAdvisor states the service is built for portfolios of $250,000 and above. By submitting, you consent to emails, phone calls and text messages from WiserAdvisor and up to three advisors, so expect to be contacted. Clear Money Guide may earn a referral payment for a qualifying completed form, whether or not you ever hire anyone.
Opens on WiserAdvisor’s site in a new tab.
See how an advisor plans your estate
Price the destination before you decide. The matching service below introduces you to advisers who pay to meet you.
Before you start, what actually happens. The form is run by Kapitalwise, our advisor-matching partner. Kapitalwise sends your details to advisers who pay for the introduction, so expect calls and texts. Clear Money Guide may earn a referral payment through this service, whether or not you ever hire anyone. This is free to you and there is no obligation to hire anyone.
The Kapitalwise form opens here; you stay on this page.
What happens when you press the button
It asks about nine questions: age, investable assets, location; then your name, email and phone number, and verifies the phone by text. Nothing loads and nothing reaches Kapitalwise until you press the button.
Prefer flat-fee or hourly pricing instead? Compare ranges here.
Answer againSources
- Section 30-2-51 Allowance Upon Grant of Divorce; Certain Property Not Considered; Retirement Benefits, Code of Alabama 1975: https://alison.legislature.state.al.us/api/code-of-alabama?page=56
- Section 43-8-70 Right of Surviving Spouse to Elective Share, Code of Alabama 1975: https://alison.legislature.state.al.us/api/code-of-alabama?page=81
- IRS Publication 551, Basis of Assets (December 2025): https://www.irs.gov/pub/irs-pdf/p551.pdf
- 26 U.S.C. 1014, Basis of property acquired from a decedent (United States Code, 2024 Edition): https://www.govinfo.gov/link/uscode/26/1014?link-type=html
Sources: the primary documents linked above, read on October 8, 2026. General information, not tax advice. Your own facts decide the outcome, and a tax professional or the state agency itself is the right place to confirm anything consequential.