Antonio Ruiz and Rosario Gálvez have lived since 1994 in a flat in the Zaidín district of Granada, which they bought under the gananciales regime (Spain's community of property between spouses). Their children have left home and they want to sell it to move to a smaller rented flat near their daughter, in Armilla, just outside Granada, without buying again. The sale has been agreed verbally for May 2026 and the gain will be 140,000 €, 70,000 € for each of them. Antonio turned 67 in January. Rosario will turn 65 in November 2026. They have been told that "pensioners do not pay tax on selling their home" and want to know whether that holds for both of them and whether they have to buy another home to avoid paying tax.
An exemption different from reinvestment
Article 33.4.b) of the law on IRPF (Spanish personal income tax) exempts capital gains arising "on the transfer of their main home by people over 65 or by people in a situation of severe dependency or high dependency". It is not a variant of the reinvestment exemption in article 38: it is an exemption in its own right, with its own conditions.
The practical difference is enormous. Someone who applies it does not have to buy another home, has no two-year periods to watch, does not have to declare any intention to reinvest and is not exposed to correcting things years later because the new house never became the main home. It is enough to meet two conditions on the day of the sale: being over 65, or being in a situation of severe or high dependency, and selling the main home.
Three exemptions best not confused
The IRPF Law offers three routes that look alike and are not the same:
| Art. 33.4.b) of the IRPF Law | Art. 38.1 of the IRPF Law | Art. 38.3 of the IRPF Law | |
|---|---|---|---|
| Who | Over-65s, or severe or high dependency | Any taxpayer | Over-65s |
| What is sold | The main home | The main home | Any asset |
| What has to be done with the money | Nothing | Reinvest it in a new main home | Set up an insured life annuity |
| Time limit | None | Two years, before or after | Six months |
| Amount limit | The law does not set one | The amount obtained | 240,000 € put into life annuities |
For someone over 65 selling their main home, the first route is almost always the simplest, because it imposes nothing after the sale. The third makes sense for what is not the main home, such as a second home or commercial premises, and the second is what remains when the age requirement is not met.
Age is looked at for each owner
IRPF is an individual tax. Antonio and Rosario are not selling "a flat" but each their own half, and each obtains their own gain of 70,000 €. The exemption in article 33.4.b) applies to whoever meets the age requirement, and only to their share. For Antonio, who is already 67 in May 2026, his 70,000 € are exempt. Rosario is 64 on the day of the sale: her gain does not fall within this exemption. The requirement is understood to refer to the age reached on the date of the deed, not in the year in which the return is filed.
With the sale in May, the figures are as follows:
- Total gain: 140,000 €.
- Antonio's share: 70,000 €, exempt under article 33.4.b).
- Rosario's share: 70,000 €, taxable unless she applies another exemption.
- As they are not going to buy, Rosario cannot use the reinvestment in article 38.1.
- Nor can she use the life annuity in article 38.3, which also requires being over 65.
- Result: Rosario includes 70,000 € in the savings base of her 2026 return.
When waiting a few months changes the result
If the sale were signed after Rosario's birthday in November 2026, both would meet the age requirement and the whole gain, the 140,000 €, would be exempt. Delaying the deed by six months can be worth 70,000 € of taxable base. It is not a trick: the law sets age as a requirement and it is checked on the day of the transfer.
Care is needed, though, that the delay does not cause the home to lose its main home status. If Antonio and Rosario move to Armilla in June and sell in December, the flat in Zaidín is no longer their residence on the day of the sale. Article 41 bis.3 of the Regulations, which applies expressly to this exemption, regards them as selling their main home if it was so until any day in the two years before the sale. Six months' leeway is within that.
It is common for an older person to go and live with a son or daughter or in a care home and for the family to take a long time to sell the house. If more than two years pass from when they stopped living there, the home is no longer regarded as the main home and the exemption in article 33.4.b) does not apply, however old the seller may be. When a sale is expected in those circumstances, it is advisable to establish from the outset the date on which the person left the home and not to let the period run out.
The home really has to be the main home
Article 41 bis of the Regulations also defines the main home for this exemption: actual and permanent residence for at least three years, with the exceptions for circumstances that force a change of address. Someone over 65 who bought their flat two years ago and sells it without a cause to justify it does not meet the requirement, even though they are old enough. And someone with two homes can only apply the exemption to the one that really constitutes their residence, as explained in what exactly "main home" means.
Dependency as an alternative to age
The exemption also extends to someone who, without having reached the age, is in a situation of severe dependency or high dependency under the Spanish law on the promotion of personal autonomy (the Dependency Act). Here the proof is the administrative decision recognising that degree. If recognition is still being processed on the day of the sale, the situation is delicate: it is advisable to review dates and paperwork before signing, because we cannot be sure how a degree recognised later will be assessed.
What the exemption does not cover
The exemption relates to IRPF. It does not affect the municipal tax on the increase in value of urban land, the well-known plusvalía municipal, which has its own rules; the guide on when no plusvalía is payable reviews the cases in which it does not apply. Nor does it automatically extend to someone who sells as a non-resident: the age exemption is in the IRPF Law and the non-residents' income tax law does not include it, so applying it to a non-resident requires a separate study, as we explain in I am a non-resident: can I apply the exemption?.
To study a sale with owners of different ages, like Antonio and Rosario's, you can send us the dates of birth, the purchase deed and the planned sale date through the reinvestment form.
And if one of the two does want to buy?
If Rosario decided to buy a small flat instead of renting, she could apply the reinvestment exemption in article 38.1 to her half, reinvesting her share of the amount obtained in a new main home within the time limit. How that figure is calculated is set out in do I have to reinvest the gain or the whole price?. Antonio, on the other hand, does not need to reinvest anything: his share is already exempt because of his age, and the money he puts into the purchase does not change his situation.
The guide on the requirements for the reinvestment exemption compares the reinvestment exemption and the over-65 exemption in more detail. Both are studied in the Salama Tax service for selling your main home, which also explains which documents are requested according to the age and situation of each owner.