A Tax Break for the Hereafter

May, 2013

Benjamin Franklin’s observation that nothing is certain but death and taxes is a little less true in Maryland, where the estate tax itself is virtually dead. Under a measure passed in this year’s legislative session, Marylanders will be able to leave behind more than $5 million in assets with no tax liability. This is good news for the rich and middle class alike.

For the last decade, any portion of a Maryland resident’s estate that exceeded $1 million in value was taxed at a rate of up to 16 percent. Under the bill Governor O’Malley recently signed into law, Maryland’s estate tax exemption will gradually increase to match that of the federal government, which currently stands at a hefty $5.34 million.

Married couples can leave an unlimited amount to each other tax-free. When the remaining spouse dies, however, a tax can be due if the couple’s combined estate exceeds the exemption amount.

This happens more often than you might think. Part of the reason is that the value of an estate includes not only assets like real estate, bank accounts, and retirement portfolios, but also any life-insurance benefits payable on the death of either spouse. Couples with significant assets, or simply an abundance of life insurance, often exceed the $1 million threshold.

Under the new law, the increased exemption amount will be phased in over the next five years, starting with an increase from $1 million to $1.5 million in 2015. By 2019, the Maryland and federal exemptions will be fully coupled at a projected level of $5.9 million. Maryland’s exemption amount will then track that of the federal government, which is adjusted annually for inflation.

Although the measure came under fire from some quarters as a tax cut for the rich, it will in fact benefit many middle-class Marylanders as well. The increased exemption puts the estate tax beyond the reach of most state residents. For married couples who may still have taxable estates, however, steps can be taken to avoid it.

Preparing Wills that include provisions for a “bypass trust,” for example, will allow some assets to be directed into the trust when the first spouse dies. The surviving spouse then has access to those assets for the rest of his or her life, either directly or at the discretion of a trustee. When the surviving spouse dies, what remains in the trust is excluded from his or her estate, either reducing the estate tax or avoiding it altogether.

For those who are heavily insured, setting up a life-insurance trust can achieve a similar outcome. Under this approach, one or more life-insurance policies are placed in an irrevocable life insurance trust, or ILIT, set up for this purpose. The trust owns the policy and is also its beneficiary. As a result, when the person dies, the policy’s death benefit is excluded from his or her estate, resulting in a tax savings.

Although the estate tax is no longer a concern for most of us, another Maryland “death tax” remains alive and well, and unmarried couples are often hit hardest. The inheritance tax is a 10 percent levy on bequests left anyone who is not a close family member—a partner who is not a spouse, a niece or nephew, a cousin, or a friend. For unmarried, the resulting tax bill can be substantial. Especially in estates that include, for example, real estate but few liquid assets, the surviving partner may be forced to tap into savings, invade a 401(k), or even mortgage the house just to pay the tax.

The best way around the inheritance tax is simply to marry your partner, as spouses are exempt. If wedding bells aren’t in your future, you and your partner can still avoid the tax for your primary residence by titling the property as “joint tenants” and executing an Affidavit of Domestic Partnership.

Regardless of your marital status or the extent of your assets, having a current estate plan is an essential first step in protecting yourself and the people you care about. A lawyer who practices in this area can help determine whether you need a simple Will or one that includes tax-avoidance provisions.

Either way, having a will in place will help you avoid the pitfalls that result from dying without one. As Benjamin Franklin might have put it, ”An ounce of prevention is worth a pound of cure.”

This information is intended to provide general information about legal topics and should not be construed as legal advice.