ATO Update on Inherited Homes: What it Means for Your Family's Wealth in Australia

The ATO has issued a Draft Taxation Determination TD 2026/D1 which looks at how inherited family homes are treated for CGT purposes. Some industry commentators have dubbed it a “death tax by stealth”, but it is a bit more complex than this. The draft guidance focuses on a specific aspect of the rules around applying the main residence exemption to inherited properties, potentially exposing deceased estates and beneficiaries to significant tax if not planned correctly under Australian tax law.

Here’s what you need to know in practical terms. 

Why TD 2026/D1 Matters

Under current law, deceased estates or beneficiaries can potentially sell a deceased individual’s former family home without paying CGT if certain conditions can be met. This exemption is particularly valuable for properties owned long-term, where unrealised gains could be substantial.

In order to access a full exemption you normally need to ensure that the property is sold within 2 years of the date of death (but the ATO can potentially extend this deadline) or that the property has been the main residence of certain qualifying individuals from the date of death until the property is sold.

You can also refer to the ATO’s official guidance on how capital gains tax and the main residence exemption apply to inherited property in Australia for technical clarity on eligibility and disposal timing, as outlined on the ATO website.

These qualifying individuals can include the surviving spouse of the deceased individual, the beneficiary selling an interest in the property or someone who has a right to occupy the dwelling under the deceased’s will.

The draft ATO guidance focuses on this last point. That is, what does it mean for someone to have “a right to occupy the dwelling under the deceased’s will.” In summary, the ATO’s view is that:

• The right to live in the home must be explicitly granted in the will to a named individual.
• Broad discretionary powers given to trustees, separate agreements, or even testamentary trusts (TTs) are not sufficient in the ATO’s view.

For example:

• A will giving an executor discretion to allow a family member to occupy the home does not meet this requirement.
• A trustee of a TT who allows a beneficiary to live in the house is seen as separate from the will and may trigger CGT on sale.

Some legal and real estate experts warn this could force families to sell homes within two years of death to avoid CGT, especially in high-value areas.

Consider this: inheriting a $2 million home with a capital gain of $1.5 million could expose the beneficiaries to $300,000–$600,000 in tax, depending on discounts and tax brackets.

However, it is important to remember that there are still other ways for the sale of the property to qualify for a full exemption.

What does “a right to occupy under the will” actually mean?

In the context of the draft determination, the ATO is drawing a distinction between a legally enforceable right created directly by the will and a practical arrangement facilitated by a trustee or executor.

A right to occupy under the will generally requires that the will itself clearly grants a named individual the legal entitlement to reside in the dwelling. If the occupation depends on trustee discretion, side agreements or later decisions, the ATO’s draft position suggests that this may not satisfy the legislative requirement for the main residence exemption to apply in full.

This technical distinction can have significant tax consequences, particularly where estates use testamentary trusts or flexible estate planning structures. 

Financial Consequences of Getting It Wrong

Where a full exemption does not apply, capital gains tax may arise based on the difference between the property’s market value at the date of death and the eventual sale price, subject to any available CGT discounts and partial exemptions.

In high-growth property markets, this can translate into six-figure tax liabilities for beneficiaries. The outcome will depend on factors such as:

• The timing of sale
• Whether the property was rented
• The availability of the 50% CGT discount
• The marginal tax rates of beneficiaries

CGT outcomes depend on individual circumstances and current ATO interpretations. The draft nature of TD 2026/D1 also means the final position may evolve.

Practical Steps to Protect Your Estate

While we are waiting for the ATO to finalise its guidance in this area, there are steps you can take to protect your family’s assets:

• Review and update your will, especially if you are planning to provide certain individuals with the right to occupy a property. Does the will currently provide this right to specifically named beneficiaries?

• Plan the timing of sales – The two-year exemption window remains, but if you inherit a property and intend to hold it longer than this, weigh any potential CGT exposure against future rental income or family needs. Partial CGT exemptions might still apply, but the rules and calculations can be complex

• Seek professional advice, especially if your estate plan uses TTs. You will normally need to work closely with tax and legal advisors to structure the plan appropriately.

• Be market aware – Estate planning can intersect with market timing. Quick sales may preserve CGT exemptions, but this needs to be weighed up against non-tax factors.

What This Means for Your Family’s Wealth

The key takeaway is clear: estate planning is a complex area and needs to be navigated carefully to preserve family wealth and avoid unintended tax implications.

Where family homes represent a significant proportion of total wealth, the interaction between wills, testamentary trusts and the main residence exemption should be reviewed proactively. Small drafting differences can materially alter tax outcomes. Many families benefit from obtaining strategic estate and tax planning advice before finalising their will or administering an estate to reduce unintended CGT exposure. A structured review of your estate plan can help ensure your intentions are carried out without unnecessary tax leakage.

Disclaimer: This information is general in nature and does not constitute tax advice. Capital gains tax outcomes depend on individual circumstances and current ATO rules. Professional advice should be obtained before making decisions.