Читать книгу 2012 Estate Planning - Martin Inc. Shenkman - Страница 46

Portability was a concept introduced by the 2010 Act—essentially, it permits a surviving spouse to “inherit” the unused remaining estate tax exemption of the spouse who died first. More specifically, portability provides that, if one spouse dies and certain requirements are met, the surviving spouse can qualify to use the entirety of the unused $5.12 million exemption amount of the deceased spouse. The impact of this was that without any complex wills or trust planning, the more “average” wealthy family could still take advantage of both spouses’ exemption amount. Most tax experts generally recommend not relying on portability for a host of reasons, including:

•It is scheduled to sunset (expire) at the end of 2012. While President Obama has suggested it be made permanent, there is no assurance it will.

•It is not available for GST tax planning purposes—that is, the GST exemption of the spouse dying first is not portable. With proposals to limit GST planning, it is even more imperative that appropriate GST exemption planning be done.

•Portability affords no estate tax protection for the appreciation in assets bequeathed outright to the surviving spouse. In contrast, if the assets were left to a bypass trust outside the surviving spouse’s estate (that is, a trust that bypasses the estate of the surviving spouse for estate tax purposes), the entire trust, including all post-death appreciation, would remain outside the surviving spouse’s taxable estate.

•There is no creditor protection with portability if the estate of the spouse dying first is left outright to the surviving spouse. However, some protection could be afforded if the assets are instead left to a marital trust (qualified terminal interest property trust, QTIP) on the first spouse’s death.

•The surviving spouse, absent the bequest of assets to a trust, such as QTIP, or the use of a will contract, could dispose of the inherited assets to a new spouse.

The real risk of portability in 2012 is that the false or misplaced reliance on portability will keep some taxpayers away from the planning table. Even if you view yourself as a smaller wealth taxpayer, reliance on portability in lieu of appropriate 2012 planning could be a costly mistake. The points just mentioned, while only some of the issues, should suffice to demonstrate this.