Shared custody and IRPF: joint taxation and the allowance for descendants

Introduction

Shared custody (custodia compartida) is increasingly common in separation and divorce proceedings in Spain. According to data from the National Statistics Institute (Instituto Nacional de Estadística), more than 45% of recent court rulings on custody of minors opt for this arrangement.
This social reality raises frequent tax questions: How should parents be taxed for Personal Income Tax (IRPF) when there is shared custody? Who can apply the allowance for descendants (mínimo por descendientes)? Can joint filing be alternated in successive years?

The Directorate-General for Taxes (DGT), in its binding ruling V1045-25 of 25 June 2025, addresses these questions.

Regulatory framework of shared custody in IRPF

Law 35/2006 on Personal Income Tax (Ley 35/2006, del Impuesto sobre la Renta de las Personas Físicas, LIRPF) regulates two essential aspects:

1. Joint taxation (Article 82 LIRPF):

   • In cases of legal separation or divorce, the family unit (unidad familiar) is formed by the father or the mother and all the children living with him or her.

   • No one can belong to two family units at the same time.

2. The allowance for descendants (Articles 58 and 61 LIRPF):

   • The tax allowance for each child is €2,400 (first descendant), €2,700 (second), €4,000 (third) and €4,500 (fourth and subsequent).

   • This amount increases by €2,800 if the child is under three years of age.

   • Where both parents are entitled to the allowance, it is apportioned 50% each, unless the children file a return together with one of them and have income exceeding €1,800.

Analysis of binding ruling V1045-25

The enquirer, who is going through a divorce with shared custody of two minor children, asked whether it was possible to alternate joint filing in successive years and how the allowance for descendants should be applied.

Joint taxation in cases of shared custody

The DGT reiterates that in cases of shared custody:

• Either parent may opt for joint taxation with the children.

• Both may never do so simultaneously.

• The parent who does not opt for joint taxation must file an individual return.

Allowance for descendants

• Where the children’s annual income is below €1,800, the allowance is apportioned 50% between the parents.

• If the children file jointly with one of the parents and their income exceeds €1,800, only that parent will apply the allowance.

Annual alternation

The tax authorities allow the parents to agree to alternate, but the entitlement is determined year by year on the basis of the situation existing on 31 December. If both exercise the option in the same year, the Spanish Tax Agency (AEAT) may regularise the tax position.

Illustrative examples

• Shared custody with children without income: the allowance is apportioned 50% each. Either parent may opt for joint taxation.

• Shared custody with children whose income exceeds €1,800: if they file jointly with one of the parents, entitlement to the allowance belongs exclusively to that parent.

Additional scenarios in cases of separation or divorce

Beyond shared custody, it is worth bearing in mind other situations:

• Sole custody: the allowance belongs entirely to the custodial parent.

• Financial contribution without custody: the parent who contributes to maintenance may apply the apportioned allowance, unless he or she is obliged to pay maintenance annuities.

• Payment of maintenance annuities (anualidades por alimentos): the parent who pays them does not apply the allowance for descendants, but may avail of the special regime for annuities. The children who receive them are not taxed on them, provided they arise from a court decision.

• Adult children: the allowance is applied by the parent with whom they live. If they come to live with the parent who was paying annuities, that parent acquires the right to the allowance.

As regards joint taxation, the single-parent family unit comprises the parent and the children who are minors or legally incapacitated, with an additional reduction of €2,150 in the taxable base. However, TEAC Ruling no. 2172/2023 of 19 July 2024 (Central Economic-Administrative Tribunal, TEAC) requires an express agreement between the parents in cases of shared custody. If this is not proven, neither of them may opt for joint taxation and all must be taxed individually.

Conclusion: shared custody, IRPF and proper tax planning

The analysis of binding ruling V1045-25 confirms that the tax treatment of shared custody and divorce requires an individual examination. The correct application of the allowance for descendants and of joint taxation depends on multiple factors: the custody awarded, the children’s income, the existence of agreements and court-ordered annuities.

Knowing these criteria is essential to avoid mistakes in the income tax return and possible regularisation by the Spanish Tax Agency. At Vicens Advisors we specialise in tax law and tax planning in Manacor and Mallorca, and we help apply these rules correctly in order to avoid errors and possible regularisation by the Spanish Tax Agency.

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