With the pending sunset of the temporary estate tax repeal, married couples are turning their attention to the potential impact on their families and loved ones should they pass on. The estate tax limits plummet to $1 million per person whereas two years ago it was $2 million per person, and last year it was $3.5 million. The number of potential taxable estates jumps dramatically at $ 1 million, the taxable rate jumps to 55%, and this has a lot of families worried. Questions of whether or not Congress will act to increase the limits or lower the percentage of the tax seem to grow louder, but the chances of such increase fall with each passing day before the end of the year.
While some members of the LGBT community are also worried, it seems that far fewer domestic partner couples have this as a primary concern when compared to ensuring their partner makes medical decisions if they get sick, that their partner will be able to access their assets for support during a medical crisis, and that their partner inherits (what’s left of) their estate when they pass on. It may be that domestic partners believe that there are no ways to avoid some of these potentially crushing taxes. There are two main estate planning strategies for providing estate tax protection for domestic partner couples—using a Partner AB-SECURE Trust as your main estate planning vehicle and the use of life insurance through an irrevocable life insurance trust.
The Partner AB-SECURE Trust provides partner control of assets during life and sickness, provides for inheritance upon death, and was specifically designed for domestic partners. While providing all of the usual benefits of using a revocable living trust, it also has the ability to avoid disastrous double estate taxation for a couple. Starting in 2011, each person will have $1 million exempt from estate taxation, but this is only truly effective if planned the right way. For example, Jon and Rick are partners, each has $1 million in assets, and Rick passes on in 2011. Jon can inherit all of Rick’s assets. But what if Jon passes on later that year? Jon will have a $2 million estate, the “extra” $1 million above Jon’s estate tax exempt assets will be taxed at about 55% meaning Uncle Sam gets about $550,000 in estate taxes.
There is a better solution. If Jon and Rick had a Partner AB-SECURE Trust, then when Rick passed on all of his assets could be sheltered in the SECURE portion of the Trust and remain available for Jon’s benefit during Jon’s life. But then when Jon passes on, Rick’s assets go on to the contingent beneficiaries he named without any estate tax. Using the Partner AB-SECURE Trust this way saved more than half a million dollars in estate taxes. For more information on this, please read Estate Planning for Domestic Partners: The Legal Secrets You Need to Know to Protect Your Partner and Your Future, available at www.livingtrustlawfirm.com/media. This particular trust is only available to attorneys affiliated with The Estate Plan (www.theestateplan.com) and Legis, Inc. (www.legisinc.com).
A second method of avoiding unnecessary estate taxes is through the proper use of life insurance (with strong emphasis on the word “proper”). Life insurance professionals may be quick to tout the benefits of life insurance, and there are many, but some will state too plainly “life insurance is tax free.” What they should say is “life insurance is income tax free to the beneficiary.” If a person owns and has control of the life insurance policy when they pass on, then the payout is considered part of their taxable estate. So how can this be arranged to avoid estate taxes? By correctly utilizing an Irrevocable Life Insurance Trust.
An Irrevocable Life Insurance Trust hold a life insurance policy (and possibly other accounts), spells out who receives the insurance proceeds, and under what conditions. If certain conditions are followed, then the life insurance will remain estate tax free. They are:
- A separate Trustee is put in charge of the Trust
- Once the Trust is created, it is irrevocable and cannot be changed
- The Trust owns the life insurance policy, or better still originally applies for the life insurance
- The beneficiary of the life insurance is the trust
- Money is gifted to the life insurance trust, and the Trustee pays the premiums
There are some other fine points to the strategy that should be discussed with an attorney, but if this plan is followed, then the life insurance is estate tax free. This could provide a significant amount of support for a surviving partner, and, if structured correctly, can also be estate tax free when the surviving partner passes on.
While the main goals of most domestic partner couples is to gain the same rights married couples take for granted, the right kind of partner protection and estate planning can provide far superior tax protection than other couples who rely solely on a marriage certificate as their estate plan.