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Posted: 04.06.2011
Tax Act - President Significantly Changes Federal Estate Tax Law

On December 17, 2010, President Obama signed the Tax Relief Act of 2010 (the "Act"). The Act significantly changes the federal estate tax, which impacts estate planning for many of our clients and presents significant estate planning opportunities. Below is a summary of the Act's key changes:

The Act provides for an estate tax and gift tax exemption of $5 million per person ($10 million for couples), with a top tax rate of 35% for decendents dying in 2011 and 2012 (or for gifts made in 2011 and 2012). Unfortunatly, this new regime is temporary and will sunset on December 31, 2012. Unless there is further Congressional action, as of January 1, 2013, the prior estate and gift tax regime will apply, and this reflects a 55% maximum rate and a $1 million exemption.

The Act also provides for "portability" between spouses of the estate tax exemption for estates of decedents dying in 2011 and 2012, where both spouses pass away prior to 2013. Generally, portability allows a surviving spouse to elect to take advantage of the unused portion of the estate tax exemption of his or her predeceased spouses, thereby providing the surviving spouse with up to $10 million of estate exemption. Special limits apply to decedents with multiple predeceased spouses.

For gifts made in 2011 and 2012, the Act limits the maximum gift tax rate to 35% and increases the gift tax exemption amount ("gift exemption") to $5 million. As discussed below, this change provides an opportunity to move significant amounts of wealth free of estate and gift taxes. Donors continue to be able to use the annual gift tax exclusion before having to use any part of their gift exemption. For 2011, the annual exclusion amount is $13,000 per donee (married couples may continue to "split" their gift and may make combined gifts of $26,000 per donee).

The Act provides a $5 million GST exemption amount (""GST" exemption") for 2010 (equal to the estate tax exemption) with a GST tax rate of 35% for 2011 and 2012. The Act also extends certain technical privisions under prior law affecting the GST tax.

Julius H. Giarmarco, Esq.
Giarmarco, Mullins & Horton, P.C.



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