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Is Montana a Community Property State? (2026)

Updated October 8, 2026. Quick answer: No. Montana is a common law state. At divorce, MCA section 40-4-202 has the court “finally equitably apportion between the parties the property and assets”, and at death the surviving spouse can elect 50% of the marital-property portion of the augmented estate. The IRS lists nine community property states.

Montana community property at a glance

ItemWhat the documents say
RegimeCommon law
At divorceThe court equitably apportions the property and assets, whoever holds title (MCA 40-4-202)
At a spouse’s deathAn elective share of 50% of the marital-property portion of the augmented estate (MCA 72-2-232)
Federal basis at the first deathA qualified joint interest between spouses: one-half is included in the estate and steps up
SourceMontana Legislature (MCA); IRS Publications 551 and 555; 26 U.S.C. 1014

What the Montana statutes say

Montana’s divorce statute looks past title. The court apportions the property whether “whether the title to the property and assets is in the name” of one spouse or both.

At divorce in Montana

The standard is equitable apportionment after the factors the section lists (duration of the marriage, age, health, income, needs and contributions). The text read sets no fixed 50/50 rule.

At a spouse’s death in Montana

MCA 72-2-232 lets a surviving spouse “to take an elective-share amount equal to 50% of the value” of the marital-property portion of the augmented estate. It adds a supplemental amount of “equal to $75,000, minus the sum of the amounts described” where the other amounts fall short. For a decedent domiciled elsewhere, the right “is governed by the law of the decedent’s domicile at death”.

What it does to basis when the first spouse dies

Because Montana 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 a Montana 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 computation of the marital-property portion is set in later sections of the same part, which were not read.

Common mistakes

  • Reading the 50% as half of the whole estate; it applies to the marital-property portion, which later sections compute.
  • 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, Montana retirement taxes, and Montana probate cost.

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Sources

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.

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