• Skip to navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

American Academy of Estate Planning Attorneys

AAEPA, Inc

Find a Member Member's Login
Call Today (800) 846-1555
  • Membership
    • Membership Membership
    • submenu
      • Why Join?
      • Member Requirements
      • Become A Member
      • Meet the Team
  • Estate planning software
  • Education
  • Practice management
    • Practice management Practice Management
    • submenu
      • 11 Essential Systems
      • Coaching
      • Law Firm Marketing
  • Resources
    • Resources Resources
    • submenu
      • Live Training
      • Blog
  • Contact Us

State Law May Override Tax Benefits of Bypass Trusts

Home » Estate Planning » State Law May Override Tax Benefits of Bypass Trusts

In any year, assets passing from a decedent to his or her surviving spouse do so tax-free because of the unlimited marital deduction. The potential tax consequences come into play when the survivor eventually dies.

A common estate planning strategy is for the predeceasing spouse to leave the most assets possible in a bypass trust for the use of the surviving spouse and children, and avoid taxation at the surviving spouse’s death. Thus, in 2009, the typical plan would leave $3.5 million to the bypass trust and the remainder to the surviving spouse. However, several states have passed legislation that overrides these estate plans if enacted prior to 2010. In these states, 2009 law is applied to someone dying in 2010. Maryland is one such state.

Take, for example, Bob and Mary, a couple who reside in Maryland and who have a net worth of $100 million, all of which is Bob’s property. Bob passes away in 2010. Since Maryland law applies 2009 law to Bob’s estate plan, the greatest amount that can pass tax-free to a bypass trust is $3.5 million, with $96.5 million passing outright to Mary. This $96.5 will be taxed in Mary’s estate if Mary dies in 2011 or later, resulting in a potential multi-million dollar tax bill.

Contrast this with the situation of Bill and Jane, a couple who live just across the state line in Delaware (which has not enacted an override provision), and who also have a net worth of $100 million, all owned by Bill. Bill also passes away this year. Since Bill’s estate is not subject to a state law override, the entire $100 million of Bill’s assets can be transferred into a bypass trust for Jane’s use. The result is that the $100 million Bill leaves will be free from tax at the time of Jane’s death, regardless of the year in which she passes away. A stark contrast, isn’t it?

What alternative does Bob have to avoid this result? He could move to a state like Delaware that does not have the override law. However, there is a simpler method. He can restate his estate plan in 2010. The state override laws only override plans that were drafted prior to 2010. So, by restating the plan in 2010, the override law would become inapplicable. The result: if Bob dies in 2010, the $96.5 million would not get thrown into Mary’s taxable estate at her later death. Under current law, if Mary dies after 2010 with a taxable estate of $96.5 million, her estate would incur a tax of $52,729,200. Thus, by restating his estate, Bob will save his children more than $52 million in taxes on their mother’s estate! Whatever fee Bob’s estate planning attorney charges, it’ll be a bargain for Bob and his family.

Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Suite 240
San Diego, CA 92124
(800) 846-1555
www.aaepa.com

  • Author
  • Recent Posts
Steve Hartnett
Steve Hartnett
Director of Education, American Academy of Estate Planning Attorneys
Steve Hartnett
Latest posts by Steve Hartnett (see all)
  • Double Your Gifting with Spousal Gift-Splitting - January 11, 2022
  • Tax Planning for 2022 - December 28, 2021
  • Donor Advised Funds: Too Good to Be True? - August 10, 2021
SHARE

About Steve Hartnett

Director of Education, American Academy of Estate Planning Attorneys

Primary Sidebar

Subscribe to our blog

Recent Posts

  • Aging Parents and Estate Planning
  • How Do I Title Thee…Part I
  • Turning Stalled Out Goals into Actions
  • What Makes a Will or Trust Invalid
  • Ultimate Social Media Cheat Sheet: Character Limits & Best Days/Times to Post

Categories

  • Academy Girl Friday (33)
  • Client Services (238)
  • Coaching (33)
  • Consumer Advantage (3)
  • Counseling (21)
  • Elder Law (5)
  • Estate Planning (920)
  • Estate Planning Documents (5)
  • Estate Planning Education (199)
  • Financial Analysis (3)
  • Financial Services (1)
  • General (19)
  • Law Firm Marketing (281)
  • Law Firm Net Revenue (7)
  • Law Firm Staffing (99)
  • Law Firm Technology (45)
  • Law Firm Web Tips (185)
  • Leadership (191)
  • Legal Education (645)
  • Marketing Tools (2)
  • Medicaid (1)
  • Member Services (1)
  • Owners Compensation (1)
  • Peak Performer Focus (1)
  • Practice Building Calls (1)
  • Practice Management (496)
  • SEO/Social Media Support (3)
  • Software (6)
  • Strategic Planning (9)
  • Uncategorized (15)

Footer

logo of American Academy of Estate Planning Attorneys

About Us

  • Meet the Team
  • Site Map
  • Legal Notice
  • Privacy Policy

Explore Our Services

  • Coaching
  • Estate planning software
  • Events
  • Legal education
  • Marketing
  • Web and SEO

Keep in Touch

Mon-Fri

9444 Balboa Ave. Suite 300

San Diego

(800) 846-1555

info@aaepa.com

Take Back Control of Your Business and Your Life

+

footer section | American Academy of Estate Planning Attorneys

© 2022 American Academy of Estate Planning Attorneys, Inc All rights reserved.

We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. By clicking “Accept All”, you consent to the use of ALL the cookies. However, you may visit "Cookie Settings" to provide a controlled consent. Don't sell my personal information.
Cookie Settings Accept All
Manage consent

Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may affect your browsing experience.
Necessary
Always Enabled
Necessary cookies are absolutely essential for the website to function properly. These cookies ensure basic functionalities and security features of the website, anonymously.
CookieDurationDescription
cookielawinfo-checkbox-analytics11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checkbox-functional11 monthsThe cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checkbox-necessary11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-others11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-performance11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
viewed_cookie_policy11 monthsThe cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.
Functional
Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features.
Performance
Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors.
Analytics
Analytical cookies are used to understand how visitors interact with the website. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc.
Advertisement
Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. These cookies track visitors across websites and collect information to provide customized ads.
Others
Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet.
Save & Accept