Planning It Right the Second Time Around

According to a study by the National Center for Health Statistics of the U.S. Department of Health and Human Services, 20% of first marriages face “disruption” (defined as separation or divorce) within the first five years. One-half of all first marriages face disruption within the first 20 years of marriage.

After disruption of the marriage, most people remarry. 75% of divorced women remarry within ten years. This trend toward multiple marriages has resulted in millions of “blended” families. While each family is unique, blended families bring even more challenges for estate planning. Each spouse may have children from prior marriages and the two spouses may have children together. Spouses may come to the marriage from different financial positions.

In the traditional couple’s estate plan, the couple wants the surviving spouse to have access to all of the assets at the first spouse’s death. They typically want the assets split equally among their children at the death of the survivor. This traditional couple’s plan often does not meet the needs of blended families.

A growing number of blended families will use a combination of two trusts to gain greater flexibility. The first trust, the Family Trust, contains the first spouse’s estate tax applicable exclusion amount. The assets in the Family Trust can be used for the benefit of any of the children when the predeceasing spouse wishes to benefit. The assets can also be used for the surviving spouse. The second trust is a Qualified Terminable Interest in Property (QTIP) Trust. A QTIP Trust leaves assets in trust for the surviving spouse. All of the income goes to the surviving spouse during his or her lifetime.

However, at the death of the surviving spouse, the assets are distributed as the predeceasing spouse directed. In other words, the assets could go to the children of the predeceasing spouse if desired. The surviving spouse does not have to have the ability to alter the disposition. By leaving assets in the QTIP Trust, they qualify for a marital deduction at the death of the first spouse. This means there need not be any estate tax due at the death of the first spouse.

The assets of the other spouse can have a completely different set of beneficiaries than the assets of the predeceasing spouse. So, the husband could leave the assets in the Family Trust to the wife for her life and then to his own children. On the other hand, the wife may decide the husband has sufficient assets and leave the Family Trust directly to her own children, excluding the husband. Both the husband and wife might decide to leave assets over the estate tax exclusion amount in QTIP Trusts for each other.

Each blended family is unique. Each couple has its own set of goals to accomplish. Proper estate planning can tailor a solution to help meet those goals. A qualified estate planning attorney can help you decide upon a plan that fits your unique situation.

DIVORCE, TAXES AND YOUR ESTATE PLAN

Fortunately, some good news does exist within the arena of divorce, and it comes from none other than the IRS. Here’s the benefit. The IRS generally does not consider the transfer of assets between divorcing spouses a taxable event. This includes cash that one spouse pays another as part of the divorce settlement. There are a few restrictions to this rule, but as long as you can demonstrate that you are divorcing for legitimate reasons not related to tax savings, you and your soon-to be ex could transfer cash and assets without fear of a tax gain or loss to either party. At least, not in the short-term future.

DEPENDENCY TAX EXEMPTION FOR CHILDREN

As in most divorce settlement negotiations, you and your spouse will probably have several bargaining chips on the table. One may be the dependency exemption for your children. These exemptions mean a lot to lower and middle income taxpayers, but not as much to high income Americans as a result of the deduction phase out.
But as often happens after divorce, there may be a significant disparity in earnings between you and your spouse. And in that case, the dependency exemption may become a chip worth bargaining for.

FILING STATUS

Couples whose divorce won’t be concluded by December 31 of a given year will have to make a difficult decision regarding the filing status they choose on their tax returns. Married filing separate is the most costly filing status available. That’s why, if you and your spouse can agree to it, you may want to continue filing jointly until your divorce is final. There are two notable exceptions to this rule, however.

Exception 1: You probably shouldn’t file jointly if your spouse has incurred taxes that he or she won’t be able to pay. By filing jointly, you assume liability for your spouse’s taxes as well as your own. If the IRS can’t get satisfaction from your spouse, it will turn to you for payment.

Exception 2: You may not want to file jointly if you suspect that your spouse isn’t fully disclosing income or is falsifying deductions. Once again, you may be held liable for your spouse’s tax liability, plus associated penalties.

WHO GETS THE CAPITAL GAINS?

Let’s assume that you are your spouse own stock that has appreciated substantially since you bought it. Purchased for $50,000 five years ago, the stock is now worth $100,000. If the two of you decide to sell the shares today, the gain would be $50,000, or the difference between your original investment and the selling price.

If you decide you’d like to keep the stock, and pay your spouse $50,000 (half the current market value) for full ownership, your total investment becomes $75,000. However, if you sell the shares, the cost basis used to determine your capital gains taxes won’t be the $75,000 you’ve actually invested in the stock. Instead, the government will look at your original cost basis – $25,000 – and your spouse’s original cost basis – also $25,000 – and deem that your actual cost basis is just $50,000! Therefore, the $50,000 cash you paid your ex-spouse for the stock goes to him or her tax free, while you are left with a hefty capital gains tax.

WHICH ESTATE PLANNING STRATEGY IS BEST?

Fortunately, all the problems described above can be neatly countered with a well-designed tax and estate plan. If you already have an estate plan in place, your main concern will be having it updated as a result of the new changes that your divorce has introduced into your life. For most, these estate planning issues are of greatest concern during a divorce:

• Controlling to whom, when and how assets are divided today, and how they will be distributed after death
• Capturing every tax break available during the divorce transition
• Maintaining control and management of certain assets
• Renaming beneficiaries

Here are three estate planning strategies that may help you achieve these objectives:

The Revocable Living Trust

This popular estate planning tool is unlike a will in that it allows you to avoid probate which brings on potential delays, expenses and public exposure. Instead, upon your death, your designated Successor Trustee assumes responsibility for management and distribution of your assets, which are owned by your Revocable Living Trust. Your trustee will follow the directions you have provided in your trust documents, including when you want assets distributed, to whom and by what means.

The Children’s Trust

Another estate planning strategy popular among parents is the Children’s Trust. It allows you to set aside funds which may be used at a later time to pay for college education or purchase a first residence.

The Irrevocable Life Insurance Trust

The Irrevocable Life Insurance Trust, or ILIT, accomplishes several important objectives. First, it lets you remain in control of the distribution of your life insurance policy’s proceeds long after you’re gone. As with the Children’s Trust, the ILIT disperses policy proceeds to your beneficiaries when and how you want. Because the trustee of the ILIT is your designee, you also ensure the proceeds remain out of your ex-spouse’s reach.

GETTING HELP

Any of these solutions, or a combination of all three, may help you achieve the tax advantages and control you seek. Equally important is the peace of mind you’ll gain when you know that, come what may, your children will be well provided for. ecause your goals and your family’s situation are unique, seek out the counsel of an attorney who concentrates on these estate planning strategies. Only he or she will be able to show you how you can best employ them for your children’s benefit.

© American Academy of Estate Planning Attorneys, Inc.