A surviving spouse in an undivided estate can only give DKK 76,900 per child tax-free in 2025, even if the other parent is deceased. According to Allan Ohms, lawyer (H) at DreistStorgaard Advokater, the tax authorities do not recognize the surviving spouse in an undivided estate as being able to give gifts “on behalf of the deceased.”

The undivided estate is considered a “continuation of the joint economy.” Therefore, the surviving spouse is considered the sole donor, and the deceased’s share does not provide a separate deduction for gifts.

Ohms clarifies that undivided estate is seen as a postponed division. The surviving spouse has control over the deceased’s share but does not fully own it. Disposal is limited, and gifts that significantly distort the inheritance are prohibited, although a tax-free gift will typically not violate this rule.

He notes that even when both spouses are alive, they are not automatically considered two donors. Gifts must be granted from each spouse’s separate property or joint property. The donor must have the funds to dispose of, and if there’s a close connection between gifts between spouses and later gifts to children, it may be viewed as circumvention, particularly if the transactions occur close in time.

Ohms cites a case example (SKM2005.133. LSR) where gifts to reduce debt attributed solely to one spouse were only approved as tax-free gifts from that spouse’s parent.

In conclusion, only one gift deduction is allowed per donor in an undivided estate, regardless of the presence of two “assets” under the same roof.