Deceased Spousal Unused Exclusion 0

Background  Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 (§303(a)) - Allows portability of any unused basic exclusion amount to a surviving spouse - Applies to decedents after Timely election made by executor on estate tax return - Made permanent by American Taxpayer Relief Act of

Highlights  §§ T, 2T, 3T - Executor must file a timely & complete return Relief available - May estimate values - DSUE may not be reduced if Congress later reduces the basic exclusion amount - Prior taxable gifts not factored into DSUE - DSUE available day after DOD - Surviving spouse gifts from DSUE first - Last deceased spouse - GST Exemption not portable 2

Portability Decision  Major Factors - Client considerations - State law - Trust vs. No Trust - Family concerns - Asset protection - Basis - Complexity 3

Flexible Options  Disclaimer Approach - Surviving spouse disclaims to a bypass trust - Advantages Flexible Simple - Disadvantages Spouse may refuse outright Spouse may not give up full ownership Spouse cannot retain a limited power of appointment Spouse cannot accept benefits Spouse dies before disclaiming 4

Flexible Options Continued  QTIP Approach - Full QTIP election with portability Reverse QTIP election utilizes decedent’s GST exemption - Partial QTIP election with “Clayton” provision & bypass trust Be aware of spouse acting as executor - Advantages Have 15 months to decide Spouse can retain a limited power of appointment - Disadvantages Complexity 5

Other Options  Gift by surviving spouse - Up to DSUE amount - Coordinate with ‘reverse QTIP’  Deemed gift under § Gift income interest of QTIP - Results in deemed gift of remainder interest  Supercharged Credit Shelter Trust 6

Final Considerations  Review documents - Address portability  Consider ‘Trust Protector’  Surviving spouse as executor  Cost of filing  Financial Impact 7

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