Estate Tax Exemption and Spousal Portability

August 23, 2011

On December 17, 2010, President Obama signed the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (for this article we will refer to this Act as the “New Estate Tax Law”), which made some key changes to the federal estate and gift tax laws.  Notable were an increase to the estate tax and gift tax exemption amounts to five million dollars each, and the introduction of the new concept of “spousal portability”.  This article offers a brief overview of the New Estate Tax Law, focusing on the creation and funding of “shelter” or “bypass” trusts and the new “spousal portability” law.

A Concern of Duration

One of the biggest concerns of the New Estate Tax is the fact that it is only valid through the end of 2012.  If Congress and the President take no further action, the tax and gift tax law will revert to the former law which allowed lower estate tax and gift tax exemptions of only one million dollars.  Moreover, there is no guarantee that a newer law will not disregard the newly introduced “spousal portability” provisions.

A Brief Overview of Spousal Portability

So what exactly is the new “spousal portability” law contained in the New Estate Tax Law?  For the purposes of this article, “spousal portability” can be summarized as follows:

The spousal portability law doubles the amount of the surviving spouse’s available estate tax exemption without having to create a special “family” or “bypass” trust prior to the first spouse’s death.  In short, the surviving spouse can receive all of the remaining estate and gift tax exemption of his or her deceased spouse.  The unused estate tax exemption of the deceased spouse is available for use by the surviving spouse at death; and the remaining gift tax exemption is available to the surviving spouse during his or her lifetime.

What does that all mean?

The surviving spouse can now pass up to ten million in assets, upon the surviving spouse’s death, estate tax free.  However, as with most tax planning matters, the increased spousal amounts for gift and estate tax issues is not automatic.  The executor of the deceased spouse’s estate must file a properly drafted estate tax return, typically within nine months of the death of the first spouse.  If this estate tax return is properly filed, the surviving spouse can pass up to ten million dollars, estate tax free, although the exact amount will very from estate to estate depending on the beneficiaries of the deceased spouse.  The full ten million dollar estate tax exclusion may not be available to all surviving spouses.

Under the prior law, neither the gift exemption nor the estate tax exemption of the deceased spouse could be used by the surviving spouse.  However, under that prior law, trusts could be used to “shelter” or “bypass” assets of the first spouse to die, as a method of increasing the amount of protected assets up to $10 million.  In order to accomplish this under the prior law, the married couple would have to engage in proactive planning to segregate those assets at the death of the first spouse and set up a “shelter” or “bypass” trust.  That bypass trust would hold assets outside the surviving spouse’s estate upon the surviving spouse’s subsequent death.  In short, these assets held in the “shelter” or “bypass” trust would not be counted in the surviving spouse’s taxable estate at death.   The “shelter” or “bypass” trust operates the same way under the current New Estate Tax Law.

Proactive Planning under the New Estate Tax Law

There is a commonly held misconception that the New Estate Tax Law eliminates the need to create a special trust, such as a “shelter” or “bypass” trust to preserve assets and maximize the amount of assets that can pass estate tax free on the surviving spouse’s death.  If fact, there are several significant reasons for proactive planning despite the existence of spousal portability in the New Estate Tax Law.  A number of those reasons are detailed below.

Expiration of the New Estate Tax law

The spousal portability is only available until the end of 2012 under the current New Estate Tax Law.

Possible Future Changes in the Law

Will there be a new different law that does not recognize spousal portability in the future?  With the current environment in Washington, speculation about possible outcomes is difficult at best and could certainly prove very costly.  Congress and the President could eliminate spousal portability entirely, or they could make adjustments or changes that would reduce the benefit of spousal portability.  The use of a “shelter” or “bypass” trust, funded at the death of the first spouse to die, would lock in the estate tax exemption of assets placed in this type of trust, thus eliminating future estate tax on the assets held in the “shelter” or “bypass” trust.  Use of the “shelter” or “bypass” trust eliminates the concern of possible future changes in the spousal portability law.

Inflation and Asset Appreciation

The New Estate Tax law indexes the estate tax exemption for inflation beginning in 2012.  However, there are three problems with relying upon this for spousal portability purposes.  First, the current law expires at the end of 2012, and there is no certainty that the new law will continue to index for inflation.  Second, the spousal portability estate tax exemption is not indexed for inflation.  Third, the assets held by the surviving spouse may appreciate resulting in estate tax liability due to increases in the assets that were transferred to the surviving spouse instead of to a ‘shelter” or “bypass” trust.  The use of the “shelter” or “bypass” trust would eliminate these concerns.  The assets placed in the “shelter” or “bypass” trust can appreciate without becoming part of the surviving spouse’s taxable estate, thereby eliminating the concern of estate taxes on the assets placed into such a trust upon the surviving spouse’s death.

Creditor Protection

The spousal portability law does not provide any creditor protection to the surviving spouse.  The use of a “shelter” or “bypass” trust provides enhanced creditor protection for assets held by the trust.  This can be important, especially if there is concern that one’s assets could be lost to creditors or future claimants or lawsuits.

State Tax Laws

Will the state in which the surviving spouse lives recognize spousal portability at the time of the surviving spouse’s death?  In Wisconsin, there currently is no estate tax.  However, this may change and Wisconsin and other states may not adopt the spousal portability provisions, since the adoption of spousal portability will result in less income to states that adopt spousal portability.  The “shelter” or “bypass” trust is an accepted estate planning technique in states such as Wisconsin.

There are additional concerns with respect to overreliance on the spousal portability law that are beyond the scope of this article.  Suffice it to say that concerns and issues arise with the spousal portability law for Generation Skipping Tax (GST) issues and remarriage of the surviving spouse.  Upon remarriage, the surviving spouse may have to use the second spouse’s spousal portability amount, if the second spouse predeceases.  This amount could be less than the first spouse’s portability amount.

Advantages of Spousal Portability

There are a couple of advantages of the spousal portability law that are worthy of mention here.

First, the surviving spouse will receive a step-up in basis on eligible property in his or her name, that the spousal portability law allows for ease of use as compared to a trust, and the spousal portability law does not require any ongoing fiduciary income tax returns.  A “shelter” or “bypass” trust will require the yearly filing of fiduciary income tax returns (1041 returns).

Second, and perhaps more importantly, the spousal portability law can also help, along with other planning such as disclaimers, if there was no or limited advance planning at the time of the death of the first spouse.

Conclusion

When considering whether to create a “shelter” trust, there is no cookie cutter solution.  Each client and circumstance is unique.  At Wokwicz Law Offices, we like our clients to make an informed decision, based on a understanding of the advantages and disadvantages of (1) doing nothing, (2) funding a “shelter” or “bypass” trust or (3) taking advantage of the spousal portability law and the New Estate Tax Law.

We invite you to contact us for assistance in working through the maze of the current estate tax law and possible advance planning prior to death or after death planning.