Surprising to most people, the federal estate tax is a voluntary tax. Estate planning attorneys used to say, “You only pay if you don’t plan.” Now, portability provides both an alternative and a back up plan to lifetime tax planning. This means you might be able to minimize or even eliminate federal estate taxes even if you didn’t plan. Here’s how.
Portability allows married couples to use two estate tax exemptions and save significant amounts in estate taxes without lifetime planning and without the division of assets. This planning option first appeared in 2010, but, because it was a temporary measure, many estate planners were hesitant to rely on it. It became permanent law in 2013 and is now considered a viable tool for many married couples.
The Key Takeaways
How Portability Works
When portability was made permanent in 2013, Congress also made the $5 million federal estate tax exemption permanent (with annual increases tied to inflation). As a result, most families don’t have to worry about federal estate taxes.
However, if your net estate is more than $5 million and you are married, portability allows your surviving spouse to use your individual estate tax exemption as well as his or her own, allowing the transfer of up to $10+ million in assets with no estate taxes, saving millions from Uncle Sam’s clutches.
Unlike trust tax planning, which must be done while both spouses are alive, portability is available after the first spouse dies and is a valuable back-up plan for couples who neglected lifetime tax planning.
Note: Portability is not automatic. An estate tax return (Form 706) must be filed within nine months after the death of the first spouse, or within any extension granted. If no timely return is filed, portability and the deceased spouse’s unused exemption (estate planning attorneys call this the “DSUE”) are forever lost, perhaps, causing the estate to pay more in estate taxes than was necessary and leaving less for the family.
Interestingly, remarriage does not change the identity of the most recently deceased spouse, and a surviving spouse can use multiple DSUEs.
Here’s an example:
Bob and Sue were married for many years. When Bob died, Sue’s attorney filed an estate tax return, thereby “electing” portability. Some time later, Sue married Phil. She decided to use Bob’s DSUE during her lifetime and made gifts to their children.
When Phil died a few years later, Sue’s attorney filed an estate tax return for Phil’s estate, making portability available. And, when Sue died, her estate was able to use both her exemption and Phil’s DSUE. Sue was able to use three federal estate exemptions and completely avoided the federal estate tax.
Keep in mind that if Sue had not used her first husband’s (Bob’s) DSUE before Phil died, it would have been wasted. Why? Because Phil would have become her most recently deceased spouse.
What You Need to Know
Trust planning can be used with or without portability and is still highly relevant for couples with any size of estate.
When there are children involved, especially if they are from a previous marriage or relationship, trust planning can allow the first spouse who dies to provide for the surviving spouse and keep control over who will eventually receive his/her share of the estate.
In addition, trust planning can protect assets from a beneficiary’s irresponsible spending, creditors, medical crises, lawsuits, and divorce proceedings, allowing the assets to remain within the family for generations to come. Trust assets can also provide for a special needs beneficiary without losing valuable government benefits.
Actions to Consider
For more information on this article, contact the Law Offices of Richard Sarner.