The plan of simply leaving everything to a surviving spouse, relying on the unlimited marital deduction to protect against any estate taxes at the first death, works for some families. However, when this is the only strategy, heirs receive an unwelcome tax surprise when the second spouse dies. A recent article in The National Law Review, “Estate Planning Mistakes—2025 Annual Refresher—Part 2,” reviews this and other estate planning matters.
The marital deduction strategy could be vulnerable to different jurisdictional approaches if one of the spouses is not a U.S. citizen or the estate includes overseas property. Foreign property regulations or citizen-based taxation systems could unravel a straightforward marital deduction strategy. A Qualified Domestic Trust (QDOT) might be considered for international estates.
To work properly, the QDOT must meet specific requirements. A U.S. trustee must immediately pay any estate tax if the principal is distributed, and special withholding is required for distributions to the non-citizen spouse. If the estate is valued at over $2 million, a bond or letter of credit for 64% of the initial QDOT value must be furnished by a bond or letter of credit, or a U.S. bank must be the trustee.
For domestic estate planning, using a credit shelter trust, sometimes referred to as a credit equivalent bypass trust, could solve taxes at the second spouse’s death. The trust takes assets out of the taxable estate, and while funding is limited to the estate tax credit amount, this type of trust could create significant long-term tax savings.
Asset allocation takes more than a simple division of assets. One heir may have a substance abuse problem, while another enjoys a highly lucrative career. Different maturity levels and financial responsibility must be considered when dividing assets to achieve the testator’s goals of caring for the family. A trust may be needed to provide limited support to the individual who can’t manage money, while another may be in a high tax bracket and prefer assets to be passed on to grandchildren.
Today’s family could be traditional, blended, include non-traditional partnerships or children conceived through assisted reproduction or surrogacy. Without addressing these different definitions of families, partners, and children, some family members could be unintentionally excluded from family trusts or qualify as decedents under prior estate planning documents. Definitions of familial relationships and explicit provisions may need to define “issue” and “descendants” to protect family members, while preventing unintended claims.
Documentation and record management is a cornerstone of estate administration. However, it typically receives little attention during the estate planning process. Having to reconstruct assets based on poorly maintained records causes headaches and additional expenses for heirs. Secure storage solutions need to be considered.
Digital vaults are growing in use. However, they must be carefully vetted to ensure that sensitive information is both protected and, at the same time, accessible to the right person. Your estate planning attorney will have recommendations for safely storing documents, whether in a fire-and-waterproof safe at home or online.
Your life and your family may look very different from your parents’ or your grandparents’ lives. However, your estate plan can reflect modern life and serve to protect all of your loved ones.
Reference: The National Law Review (Dec. 9, 2024) “Estate Planning Mistakes—2025 Annual Refresher—Part 2”
