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
| Item | What the documents say |
|---|---|
| Regime | Common law |
| At divorce | The court equitably apportions the property and assets, whoever holds title (MCA 40-4-202) |
| At a spouse’s death | An elective share of 50% of the marital-property portion of the augmented estate (MCA 72-2-232) |
| Federal basis at the first death | A qualified joint interest between spouses: one-half is included in the estate and steps up |
| Source | Montana 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.
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 for a qualifying submitted form, 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
- 40-4-202. Division of property, Montana Code Annotated 2025: https://mca.legmt.gov/bills/mca/title_0400/chapter_0040/part_0020/section_0020/0400-0040-0020-0020.html
- 72-2-232. Elective share, Montana Code Annotated: https://mca.legmt.gov/bills/mca/title_0720/chapter_0020/part_0020/section_0320/0720-0020-0020-0320.html
- 72-2-221. Repealed, Montana Code Annotated: https://mca.legmt.gov/bills/mca/title_0720/chapter_0020/part_0020/section_0210/0720-0020-0020-0210.html
- 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.