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Implications of DSUE Portability for Farm Estate Planning

Alan Miller

Summary

The American Taxpayer Relief Act of 2012, which was signed into law on January 3, 2013, permanently extended a federal estate and gift tax provision allowing for the portability of a deceased spouse´s unused applicable exclusion amount to a surviving spouse. This provision was originally enacted into law on December 17, 2010, by the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010. The Congressional Joint Committee on Taxation has estimated that this portability election will save taxpayers in excess of 369 million dollars over the ten years from 2013 through 2022. But, what are the implications of portability for farm estate planning and married farmers’ existing estate plans? Should existing plans be revised in favor of electing portability? This presentation concludes that portability may well end up being a problematic addition to the estate planning toolkit if it reduces farm couples’ willingness to engage in planning for the distribution of the first decedent spouse’s estate. It concludes that achievement of the intended benefits of the provision may be hampered by the regulatory requirements established to implement portability. The presentation uses an example of a married farm couple’s estates to illustrate circumstances under which existing plans for married farm estate owners reduce federal estate and gift taxes more than can be accomplished by electing to use portability. Helping farmers understand the advantages and disadvantages of portability versus its alternatives represents an important educational opportunity. The presentation will provide talking points useful for educational programs on the topic.

Details

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