Portability strategy for saving estate taxes

PORTABILITY BASICS

This article describes the basic concepts of portability. Traditionally the most common planning for reducing Federal estate taxes was credit shelter planning. Credit shelter planning requires the clients to have separate trusts, one for each spouse, set up and funded before the death of the first spouse.

The Federal estate tax allows each spouse a certain amount that can be taxed tax free, in 2017 the amount is $5.490 million. However, before 2010 the family would only receive a single $5.490 million exempt amount, absent credit shelter trusts. While each person was entitled to a separate $5.490 exempt amount, the family only got one such exempt amount absent employing a credit shelter trust setup. To do so, the family had to set up separate trusts before either one of the two spouses died. The new tax law passed effective starting in 2018 DOUBLED amounts that can be passed in an estate tax free.

Portability was a new option that came in after 2010. Congress changed the tax law so that while credit shelter trusts were still the same viable planning option, the law was changed so that separate trusts do not have to be set up in advance in order to get both spouse’s $11M exempt amounts.

What is the catch with portability? Well, “portability” involves essentially obtaining the equivalent of an “accounting credit” for the first spouse’s exempt amount (or remaining portion of it in some estates). Then the surviving spouse gets his or her own exempt amount plus the “accounting credit” amount. The catch is that to get the credit the IRS requires a portability 706 tax return be filed within 9 months of the date of death of the first spouse.

Besides the catch just mentioned, portability appears to suffer by comparison with credit shelter trusts in that capital appreciation (but not income) allows additional exempt amounts for credit shelter trusts but not portability setups. The capital appreciation referred to is after the death of the first spouse, up to the date of death of the second spouse to die. On the other hand, portability setups have a better advantage over credit shelter trusts with respect to basis step-up and income taxes. The significance of this issue of capital appreciation is disputed by some estate planners; with the argument that there are strategies to eliminate the problem while keeping the advantages of portability.  Portability formats have become extremely popular for estates with asset ranges of $5 to $20 million. Credit shelter trusts retain some advantages for estates above this level, but portability can be considered alternately by the client for those estates as well.

Clients should keep in mind that the amounts sheltered from estate taxes made a very large jump from about $5.5M to $11M per person. This large jump substantially increases the possibility that a future congress will reduce the credit shelter amount (if political winds change). For this reason clients with estates lower than the amount currently taxed should NOT be complacent and ignore estate tax planning, and in particular should be sure to obtain the benefits of portability. This action should certainly be taken if the client’s estate is estimated to be $5M or more; moreover, estates sizes of between $3 and $5M should consider the same portability planning.

If you desire information on how either portability or credit shelter strategies could impact your own estate planning, contact the law firm (using either a contact sheet from this website see: http://Contact us, OR just call in to the law firm: see the phone number and address on the website home page: Website Home page).