Moses & Singer LLP Attorneys Arlene Dubin and Carole Bass Explain “Prenups and Portability” – A New Concept in Estate and Gift Tax Law

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“Portability” is set to play a big role in federal estate and gift tax planning. Dubin and Bass discuss its impact on marital agreements and family wealth preservation in their New York Law Journal article.

Carole Bass, Partner and Arlene Dubin, Partner

New portability rules may have a multi-million dollar impact on marital agreements and estate plans.

“High net worth families and their financial advisors need to understand ‘portability’ and the reasons why it could have a multi-million dollar impact on marital agreements and estate plans.” That is the word from Moses & Singer LLP attorneys Arlene Dubin and Carole Bass in their 7/29/2013 article in the New York Law Journal entitled "Understanding Portability Is Crucial for Prenup Drafting".    Arlene is the co-chair of the firm’s Matrimonial and Family Law Practice and author of “Prenups for Lovers: A Romantic Guide to Prenuptial Agreements.” Carole is a partner in the Trusts & Estates Practice.

A concept made permanent with the enactment of the American Taxpayer Relief Act of 2012 (ATRA) on 1/2/2013, portability allows spouses to share their federal estate tax exclusion with one another. Such sharing creates a potentially valuable asset to be considered in marital agreements, both prenuptial and postnuptial.

Each individual can pass an unlimited amount free of federal estate and gift taxes to a spouse or charities, but may pass only a limited amount to other persons (including children) free of transfer taxes. While commonly referred to as the estate tax exemption, this limit ($5,250,000 in 2013) is technically knows as an individual’s “applicable exclusion amount.”

With the introduction of portability, this amount now includes any “unused” exclusion amount associated with an individual’s last deceased spouse --referred to as the “deceased spousal unused exclusion amount” or the DSUE amount. A surviving spouse may use the DSUE amount at death or by making gifts during his or her lifetime.

“Prior to the advent of portability, the federal estate tax exclusion of the first spouse to die was essentially wasted if not fully utilized by that spouse,” note Dubin and Bass in their article. “Now, however, the DSUE amount may be ported or transferred to the surviving spouse.”

When a less wealthy individual predeceases his/her wealthier spouse, the wealthier spouse can take advantage of the deceased’s unused federal estate tax exclusion. The tax savings could be as much as 40% of $5,250,000 or $2,100,000 for the survivor’s beneficiaries – a significant asset to be addressed in a marital agreement.

The DSUE factor may provide some leverage for the less wealthy party in a marriage. “Because the less wealthy party may bring this benefit to the marriage, he or she may be able to negotiate concessions from the wealthier party,” says Dubin.

“To effectuate the portability planning in a marital agreement requires careful planning and coordination with a party's Will and other estate planning documents. Such documents need to incorporate this concept in order to make it work,” advises Bass.

For more details about prenups and portability as well as related articles about marital agreements, asset protection, trusts and estate planning, see the articles written by Arlene Dubin and Carole Bass on the Moses & Singer website. Arlene Dubin and Carole Bass are Partners at Moses & Singer LLP, a law firm founded in 1919, serving the legal needs of prominent businesses and high net worth individuals in New York City and nationwide.

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Eileen Alterbaum
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