Unlimited Marital

Deduction

Marriage – A single economic unito Concept is that the “pair” functions as one

economic unit

• When buying assets• When selling assets• When transferring assets via gift

o Thus money and property to flow freely back and forth between the “pair”

o Only remaining property at death of second spouse should be taxed (estate taxes)

Transfers between spouses while living – unlimited marital deduction (no gift taxes)

Transfers to surviving spouse – unlimited marital deduction (no estate taxes)

All estate taxes paid at death of second spouse (taxes postponed until both are deceased)

Cases where paying taxes early on estate (at death of first spouse) may be advantageouso Wealthy spouse puts “assets” in by-pass trusto Wealthy spouse uses one-time gift exclusion (doubles

exclusion)

How does a couple qualify for unlimited marital deduction on transfers?o Couple must be married at time of first one to dieo Divorced couples do not qualifyo Separated couples qualify

What property qualifies for unlimited deduction?o First, property must be passed to surviving spouseo Second, property must be included in estate of deceased

spouseo Third, only the net value of the property qualifies for the

unlimited deductiono Community Property only passes 50% to surviving spouse – and

property is adjusted to FMV at date of death for both portions

The terminal interest ruleo In general, only property that will be included in the estate

of the surviving spouse is eligible for the unlimited deduction• Concept here is that the property will be in the estate of the

second to die and taxes will be collected at that time• If property is outside the estate of the surviving spouse, the

estate of the first to die must pay the necessary estate taxeso If the interest in the beneficiary interest terminates with

the second in death, it is property with a terminable interest and not included in the estate of the second to die.• Annuity stream set up for surviving spouse where surviving

spouse is the lone beneficiaryo Exceptions – listed on page 407 and include, GPOAs, QTIPs

and CRTs

General Power of Appointment (over a trust)o If spouse has general power of appointment over the

trust and• Can appoint the property to one’s self• Can appoint the property to one’s estate• Can appoint the property to one’s creditors• Or Can appoint the property to the creditors of one’s estate

o Then property qualifies for unlimited marital deduction Qualified Terminal Interest Property Trust (QTIP)

o Allows deceased to control remainder beneficiaryo Allows surviving spouse use of property and income

from trust for remainder of surviving spouses lifeo Qualifies for unlimited marital deduction

Charitable Remainder Trust (CRT)o If surviving spouse is only non-charitable beneficiaryo Qualifies for unlimited marital deductiono Charitable Remainder Trusts explained in Chapter 9 (see

PowerPoint slides)

Non-citizen Spouseo The limited marital deduction is $145,000 (as of 2014)o This limited deduction is a one-time annual o Limit is because surviving spouse could return to “home”

country with the assets and the assets would avoid estate tax

o However, if surviving spouse “becomes U.S. citizen” before estate of deceased is settled and maintains residency in U.S.• Property qualifies for unlimited marital deduction

o Qualified Domestic Trust (QDOT)• If trust is set up and subjects property to U.S. estate tax at

death of second, trust retains sufficient assets to pay estate tax, one trustee U.S. citizen, cannot distribute principal without tax withholding, originator of trust must elect marital deduction for deceased’s estate

Portability of One-Time Gift Tax Exclusiono Deceased Spouse’s Unused Exemption (DSUE)

• Allows spouse to use both the deceased exemption and their exemption in the estate of the second to die

• Doubles what a single estate can claim (federal)• Spouse can only use most recent marriage

• Amy and Bill are married• Bill passes and never used exemption ($5,340,000)• Amy receives Bill’s unused exemption and at death can

exclude twice her normal limit (2 x $5,340,000 = $10,680,000)• Amy remarries Clint• Amy loses Bill’s exemption and now can only use Clint’s

unused exemption if he should pass first (Clint can use Amy’s…)

Special Giving Vehicle – Charitable Remainder Trust (CRT)o Current benefits of property “retained” by donoro Remainder interest in property donated to charityo Irrevocable trusto Charity is trustee of the trusto Value of donation is fair market value of property

minus the beneficiary interest in the trust retained by the donor

o Beneficiary interest is usually income and value is present value of income based on estimated life of the donor

Two Other Vehicles for deductions (and exemptions)o A-B ByPass Trust – explained in Chapter 8 (see

PowerPoint slides)o Irrevocable Life Insurance Trusts (ILIT) – will be

explained in next chapter (Chapter 11)

What are the implications for Financial Planning?o What options are available to married couples?

• Deductions• Postponement of estate taxes• Trusts and Property Transfers through a Trust• Terminal Interest Qualifications

o How does a divorce impact these options?• Loss of deductions• Trust and Property in Trust• Community Property

o How does a second marriage impact these options?• Loss of deductions from first spouse• Changes in beneficiaries of property, by law and via trusts