Effective for estates of decedents dying after 2010 and before 2013, the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (2010 Tax Relief Act) allows a deceased spouse's unused exemption to be shifted to the surviving spouse. This article examines how this new portability feature works and how it affects estate planning for married couples.
Background. For estates of individuals dying in 2009, the top estate tax rate was 45% and there was a $3.5 million applicable exclusion amount. There was no estate tax for 2010.
A credit (the “unified credit”) is allowed against the estate tax imposed on U.S. citizens and residents. The credit is equal to the tentative tax on the “applicable exclusion amount,” determined under the estate tax rate schedule.
Pre-2010 Tax Relief Act law did not allow for any unused portion of a decedent's applicable exclusion amount to be used by the estate of the decedent's surviving spouse. Because of this, married couples typically implemented a two-trust estate plan to take advantage of each spouse's applicable exclusion amount: (1) a credit-shelter trust making use of the applicable exclusion amount, and (2) a marital trust qualifying for the marital deduction. For example, a decedent dying in 2009 with $7 million in assets may have placed $3.5 million in a credit-shelter trust and $3.5 million in a marital trust. This would have reduced his estate tax to zero. When his surviving spouse died, only assets in the marital trust would be subject to tax to the extent not protected by the surviving spouse's applicable exclusion amount. The assets in the credit-shelter trust would not be subject to estate tax on the death of the surviving spouse, even if they grew well beyond the original $3.5 million.
Every individual is allowed an exemption from the generation-skipping transfer (GST) tax. Under pre-2010 Tax Relief Act law, the GST exemption amount was equal to the applicable exclusion amount for estate tax purposes.
New portability feature. Under the 2010 Tax Relief Act, for estates of decedents dying after 2010 and before 2013, the applicable exclusion amount is the sum of (1) the “basic exclusion amount” and (2) in the case of a surviving spouse, the “deceased spousal unused exclusion amount.” (Code Sec. 2010(c)(2))
The basic exclusion amount is $5 million with an adjustment for inflation after 2011. (Code Sec. 2010(c)(3))
Observation: The 2010 Tax Relief Act also changed the rules for decedents dying in 2010 by allowing their estates to choose between: (1) no estate tax and the modified carryover basis rules that were slated to apply for 2010, or (2) estate tax with a $5 million applicable exclusion amount and a step-up in basis.
The “deceased spousal unused exclusion amount” is the lesser of:
1. the basic exclusion amount, or
2. the excess of the basic exclusion amount of the last deceased spouse dying after Dec. 31, 2010, of the surviving spouse, over the amount on which the tentative tax on the estate of the deceased spouse is determined. (Code Sec. 2010(c)(4))
A surviving spouse may use the deceased spousal unused exclusion amount in addition to her own $5 million exclusion for taxable transfers made during life or at death.
Illustration 1: Husband 1 dies in 2011, having made taxable transfers of $3 million and having no taxable estate. An election is made on his estate tax return to permit Wife to use his deceased spousal unused exclusion amount. As of his death, Wife has made no taxable gifts. Thereafter, Wife's applicable exclusion amount is $7 million (her $5 million basic exclusion amount plus $2 million deceased spousal unused exclusion amount from Husband 1), which she may use for lifetime gifts or for transfers at death. (Committee Report)
If a surviving spouse is predeceased by more than one spouse, the amount of unused exclusion that is available for use by the surviving spouse is limited to the lesser of $5 million or the unused exclusion of the last deceased spouse. (Code Sec. 2010(c)(4)) This so-called “last deceased spouse” limitation applies whether or not the last deceased spouse has any unused exclusion, and whether or not his estate makes a timely election to allow the surviving spouse to use the deceased spousal unused exclusion amount (see below).
Illustration 2: Assume the same facts as in illustration (1), except that Wife subsequently marries Husband 2. He predeceases Wife, having made $4 million in taxable transfers and having no taxable estate. An election is made on his estate tax return to permit Wife to use his deceased spousal unused exclusion amount. Although the combined amount of unused exclusion of Husband 1 and Husband 2 is $3 million ($2 million for Husband 1 and $1 million for Husband 2), only Husband 2's $1 million unused exclusion is available for use by Wife, because the deceased spousal unused exclusion amount is limited to the lesser of the basic exclusion amount ($5 million) or the unused exclusion of the last deceased spouse of the surviving spouse. Thereafter, Wife's applicable exclusion amount is $6 million (her $5 million basic exclusion amount plus $1 million deceased spousal unused exclusion amount from Husband 2), which she may use for lifetime gifts or for transfers at death. (Committee Report)
Observation: The last deceased spouse limitation may impact a decision to remarry. At the very least, a spouse who is considering remarriage and who stands to lose her predeceased spouse's unused exemption may want to get her new prospective spouse to agree in a prenuptial agreement to compel his estate to give her his unused exemption if he should predecease her.
Observation: While the basic exclusion amount of a spouse who dies after 2011 is adjusted for inflation, the deceased spousal unused exclusion amount is determined as of the year of death of the first spouse to die, and is not adjusted for inflation that occurs after that spouse dies even though the basic exclusion amount of the surviving spouse is adjusted.
Observation: In theory, the portability provision should negate the need for what is often complex estate planning to make it possible for each spouse to use the amount of the applicable exclusion needed to minimize estate taxes as much as possible. However, because the provision sunsets after 2012 (unless further extended by Congress), married couples may still want to try to maximize the amount of the exclusion used in the estate of the first to die and provide an exclusion in the estate of the second to die, e.g., by making the value of property owned by each spouse roughly equal.
Observation: Even if the portability provision does not sunset after 2012, there may still be reason for each spouse to plan to use as much of the applicable exclusion as possible. This is because, to the extent that property received from the first spouse to die is not included in the survivor's estate (e.g., property placed in a trust for the survivor that does not qualify for the marital deduction, such as a traditional credit-shelter trust), the value of that property (including any increase in that value after the death of the first spouse to die) will not be included in the estate of the survivor.
RIA illustration 3: Wife dies in 2011, leaving a taxable estate of $10 million before taking the marital deduction and the applicable exclusion into account. She made no previous taxable gifts. She leaves her entire estate to Husband in a manner that qualifies for the marital deduction so that there is no estate tax owed, and no part of Wife's applicable exclusion is used. An election is made on Wife's estate tax return to permit Husband to use Wife's deceased spousal unused exclusion amount of $5 million. Assume that the portability provision does not sunset after 2012. Husband dies in 2018 when the amount of his total taxable transfers is $20 million (before the applicable exclusion), including property he inherited from Wife worth $18 million. Assume also that his applicable exclusion is $11 million ($5 million deceased spouse's unused exclusion amount, plus Husband's own basic exclusion amount of $6 million (the inflation-adjusted amount for individuals dying in 2018). Husband, who has not remarried, will pay an estate tax of $3,150,000 (35% of $9 million (taxable transfers of $20 million less applicable exclusion of $11 million)).
Now assume that Wife uses her entire applicable exclusion to place $5 million of her estate in a trust for Husband that does not qualify for the marital deduction. On Husband's death, the value of this trust is $9 million, and the amount of Husband's total taxable transfers before use of his applicable exclusion is $11 million, including property worth $9 million that he inherited from Wife. His estate will pay an estate tax of $1,750,000 (35% of $5 million, ($11 million less his applicable exclusion of $6 million)). This is $1,400,000 less than where Wife left her entire estate to Husband outright or in a trust that qualified for the marital deduction.
Observation: The preceding example shows that the traditional two-trust plan can save taxes under the facts posited. In addition, if there is concern that the surviving spouse has spendthrift proclivities, the credit-shelter trust can protect assets from being squandered by the surviving spouse. It can also protect against creditors. A credit shelter spouse lets the first spouse to die control disposition of the assets after the spouse's death. If everything is left outright to the surviving spouse with the view to her making use of the deceased spouse's exclusion, the surviving spouse will be able to control the ultimate disposition of the assets.
Election required. A deceased spousal unused exclusion amount may not be taken into account by a surviving spouse unless the executor of the estate of the deceased spouse files an estate tax return on which the amount is computed, and makes an election on the return that the amount may be taken into account by the surviving spouse. The election, once made, is irrevocable. No election may be made if the estate tax return of the deceased spouse is filed after the due date (including extensions) for filing the return. (Code Sec. 2010(c)(5)(A))
Observation: This could prove to be a pitfall because an election must be made on an estate tax return of the deceased spouse, even if the estate is not otherwise required to file an estate tax return. Also, the cost of filing a return that would not otherwise be required may not sit well with some clients.
Open limitation period. In spite of any Code Sec. 6501 period of limitation for assessing estate or gift tax with respect to a deceased spouse, IRS may examine a return of the deceased spouse after the period of limitation has expired in order to determine the deceased spousal unused exclusion amount available for use by the surviving spouse. (Code Sec. 2010(c)(5)(B))
Observation: Thus, if an estate contains a business or other assets that are difficult to value, the open limitation period rule may be a strong factor weighing against making the election. The certainty of a final agreed upon valuation with IRS may make use of the traditional two-trust plan preferable in situations like this.
Observation: Also, as shown above, a credit-shelter trust may protect appreciation occurring between the death of the first spouse and the death of the second spouse from being subject to estate tax. Such a trust also can protect against creditors. Plus, the transferred exemption may be lost if the surviving spouse remarries and is again widowed.
GST exemption not portable. The 2010 Tax Relief Act redefines the amount of the GST tax exemption from the “applicable exclusion amount” to the “basic exclusion amount” ($5 million, indexed for inflation after 2011). Thus, the provision allowing portability of the estate tax applicable exclusion amount does not allow a surviving spouse to use the unused GST exemption of a predeceased spouse.
Estate tax return filing threshold tied to basic exclusion amount. The 2010 Tax Relief Act provides that the estate of a U.S. citizen or resident must file an estate tax return if the gross estate exceeds the “basic exclusion amount” (i.e., $5 million, subject to an adjustment for inflation after 2011), instead of the “applicable exclusion amount.” (Code Sec. 6018(a)(1))
Observation: Thus, the estate of a U.S. citizen or resident dying after Dec. 31, 2010, must file an estate tax return if the gross estate exceeds $5 million (as indexed for inflation after 2011), even if the decedent's applicable exclusion amount is greater than $5 million as a result of the deceased spousal unused exclusion amount.