Updated October 8, 2026. Quick answer: No. New Hampshire is a common law state. At divorce, RSA 458:16-a says the court “The court shall presume that an equal division is an equitable distribution” unless it finds an equal division inappropriate, and at death a spouse who waives the will takes a statutory share under RSA 560:10. The IRS lists nine community property states.
New Hampshire community property at a glance
| Item | What the documents say |
|---|---|
| Regime | Common law |
| At divorce | The court may order an equitable division and presumes an equal division is equitable (RSA 458:16-a) |
| At a spouse’s death | A spouse who waives the will takes a statutory share, one-third part of the personalty and real estate when children or issue survive (RSA 560:10) |
| Federal basis at the first death | A qualified joint interest between spouses: one-half is included in the estate and steps up |
| Source | New Hampshire General Court; IRS Publications 551 and 555; 26 U.S.C. 1014 |
What the New Hampshire statutes say
New Hampshire’s statute is headed property settlement. It says “the court may order an equitable division of property between the parties”, and it reaches all property of either or both spouses regardless of title.
At divorce in New Hampshire
New Hampshire is closer to an equal-split rule than most common law states, but only as a presumption: “The court shall presume that an equal division is an equitable distribution” unless the court finds an equal division inappropriate after weighing the factors the section lists.
At a spouse’s death in New Hampshire
New Hampshire does not use an augmented-estate percentage. RSA 560:10 governs the distribution when a surviving spouse waives the will, and the spouse “shall be vested with the following portion of the estate”. Where children or issue survive, the portion is “one-third part of the personalty and one-third part of” the real estate. In other situations the section sets dollar amounts and fractions that depend on who survives, including “plus two thousand dollars for each full year from the date” of the marriage in one case; this page does not restate them.
What it does to basis when the first spouse dies
Because New Hampshire 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 New Hampshire 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 section’s other tiers are described only in part above; read RSA 560:10 itself before relying on a number.
- The documents read do not state a rule for a couple who moved to New Hampshire.
Common mistakes
- Assuming the statutory share is a percentage of an augmented estate; New Hampshire’s is a share of the personalty and real estate that depends on who survives.
- 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, New Hampshire retirement taxes, and New Hampshire 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
- 458:16-a Property Settlement (New Hampshire Revised Statutes Annotated): https://www.gencourt.state.nh.us/rsa/html/XLIII/458/458-16-a.htm
- 560:10 Distribution When Surviving Spouse Waives Testate Distribution (New Hampshire Revised Statutes Annotated): https://www.gencourt.state.nh.us/rsa/html/LVI/560/560-10.htm
- 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.