Since portability was enacted as part of the Tax Relief Act of 2010, it’s taken the pressure off couples to formulate an estate plan around a primary goal of using as much estate and gift tax exclusion as possible at the first death. By eliminating the “use it or lose it” aspect of planning with the applicable exclusion, portability allows a couple to set aside property in a nonmarital trust at the first death, but not cause use of the exclusion to drive other planning decisions. This freedom is particularly important for couples with large amounts in individual retirement accounts, who wish to leave the IRAs directly to the surviving spouse because of the income tax advantages.
A Dangerous Choice?
Despite its advantages, portability isn’t always recommended. The family’s attorney and family office advisors should exercise caution in a marriage in which there are children from a prior marriage or other nonstandard family situations. Here, portability remains a dangerous choice. The estate planning attorney needs to consider whether leaving an executor with discretion to use portability is even appropriate and, if it is, who the executor should be and how the estate tax burden should be allocated.
The problem with portability in nonstandard families is that it allows the surviving spouse to use the DSUE amount personally, rather than for the beneficiaries of the first spouse to die. In effect, electing portability is like leaving assets outright to that surviving spouse. The Treasury regulations provide that, for a testate decedent, only the executor can make the portability election. In these situations, the executor probably should not be a beneficiary under the estate plan and/or should be directed as to a portability election.
For example, if the estate isn’t large enough to independently require the filing of an estate tax return, an executor who’s a child of a prior marriage may choose not to incur the expense of filing an estate tax return solely to make the portability election for the second spouse. Rather than have the parties disagree over the need for a return, or over covering the cost of its preparation, it’s better to have the estate plan direct whether an estate tax return should be filed to elect portability and, if so, who’s responsible for the cost of the preparation and filing.
Often, in a complex family structure in which a client has children from a prior marriage, a qualified terminable interest property (QTIP) trust is used for the surviving spouse, with the trust assets eventually passing to the client's descendants. However, when a QTIP trust is combined with portability, the client's estate plan may not operate as intended.
Example
John marries Mary several years after his wife, Janet, dies. John has three children from his marriage to Janet. John bequeaths most of his estate to a QTIP trust for Mary and the remainder to his children. He names Mary as executor. At John’s death, Mary elects QTIP treatment for the trust and portability. She then makes gifts of her own assets to her family using John's DSUE amount. Mary dies with an estate equal to her basic exclusion amount, which she also leaves to her family. The QTIP trust pays estate tax, and John's children receive no benefit from John’s exclusion amount.
Even if Mary didn’t make gifts to her family, assuming that her estate was large enough to absorb most of her applicable exclusion amount (including the DSUE), the QTIP trust would have to contribute to pay the estate taxes attributed to it, unless the estate plan waives reimbursement. IRC Section 2207A requires reimbursement on a marginal, not proportionate, basis. Thus, the QTIP trust could bear most or all of the estate tax at the second spouse’s death, while the second spouse’s personal assets are sheltered in part by the deceased spouse’s DSUE amount. In cases such as these, the more prudent course of action may be to use traditional credit shelter/marital deduction planning. If there’s DSUE amount available, then the estate plan should direct whether it will be used and how the tax burden on the QTIP trust is handled.
Prenup/Postnup Agreement
The couple also could address these issues in a prenuptial or postnuptial agreement. For example, the parties could agree to permit the surviving spouse to have the use of any DSUE amount of the first spouse to die in return for an agreement that the surviving spouse would waive the right of reimbursement for tax due as a result of the inclusion of the QTIP trust in the surviving spouse’s estate (or at least for that portion of the QTIP trust equal to the DSUE amount).
Thomas Abendroth is a partner at ArentFox Schiff LLP in Chicago.