In December of last year Congress passed a new law temporarilychanging certain provisions of the estate tax law. The most talked-about provisions involve the estate tax exclusion and the rate of the tax. Had no new measure been passed, the estate tax exclusion would have been just $1 million and the top rate of the tax would have been 55%. As a result of the passage of this measure, we are now looking at a $5 million exclusion and a 35% maximum rate, but only until December 31, 2012; after that, the estate tax exclusion again will be reduced to $1 million with a maximum rate of 55%. So if your estate is now or is expected to be worth more than $1 million, planning to avoid the estate tax remains important.
There are also some lesser publicized provisions contained in the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 that impact estate planning. First, the gift tax and the generation-skipping transfer tax are now also carrying a $5 million exemption and a 35% maximum rate. Second, the new tax act has made the estate tax exclusion portable between spouses. The new portability provision allows a surviving spouse to die to add the unused exclusion amount of their deceased spouse to their own exclusion amount to be used at the surviving spouse’s death. However, the portabililty is not automatic; there are estate tax filing requirements that must be met at the first spouse’s death in order to preserve that portability. Moreover, the portability provision only applies if both spouses die in 2011 or 2012.
A qualified estate planning attorney can help you navigate the new rules to be sure all available estate tax exclusions are preserved now and in the future.