With the recent changes in federal and Ohio law, LGBT couples are now afforded the same right to marry previously only granted to the union of a man and woman. There is the fair expectation that some of these marriages will similarly end in divorce or dissolution. While many of the legal issues involved in the termination of an LGBT marriage are the same as those traditionally between a man and a woman, there are some important distinctions and issues that need to be addressed.
Question: What do bankruptcy and divorce have in common?
Answer: Both can provide a chance for a fresh start.
Which should I do first: Divorce or Bankruptcy? And,
should I file with or without my soon to be ex-spouse?
As with many questions asked of an attorney, the answer is “It depends.” Bankruptcy and divorce are two separate legal processes that often go hand in hand, but one can have a negative impact on the proceedings of the other. A complex analysis is often needed to be able to realize all the benefits of a bankruptcy filing.
In 2013, there were changes to the federal estate tax rules. Starting in 2013 the gift tax exemption was set at $5.25 million per person, indexed for inflation. That means that for anyone who dies in 2013, the first 5.25 million of their estate avoids estate taxes, if none of the exemption was used by making lifetime gifts. For estates that were taxable the maximum rate was 40%. Spouses can make unlimited tax-free gifts and bequests to each other, so long as the receiving spouse is a US citizen.
Married couples retain the exemption portability that was created by the 2010 tax. After one spouse dies. the surviving spouse can use both their own lifetime exemption and the deceased spouses exemption that was not used to shelter assets. Portability gives married couples a true joint exemption, which is $5.45 million each spouse in 2016. Unlike pre2010 law, spouses don’t have to be concerned about making sure each spouse has title to enough property to properly fund and use their maximum lifetime exemption.
So, the question I hear all the time is “Do you still need a bypass (marital deduction, AB trust) trust?”. Under the old law the main reason to use a trust was to take full advantage of the lifetime exemption while being able to continue to provide for a surviving spouse. At this time, unless you estate is greater than $10 million you no longer need a bypass trust for that reason. But, there are many other reasons a bypass trust can be an important part of your estate plan.
1. Controlling from the Grave. You may want to provide for your spouse, but you also want to ensure you give to those you want to receive it at a specific time or age. You can give to your family when you want.
2. Keeping your intentions. Some people are concerned a spouse may remarry and may leave the money to a new souse and other new family members. Some are already in a second marriage and may not believe their spouse will leave any of the estate to the children of the first marriage. A bypass trust benefits those to make sure your intentions were carried out.
3. Creditor Protection. Placing assets in a trust often times protects them from the creditors of your love ones. Creditors can be lawsuit winners, credit card companies, business partners and ex-spouses. It can assist family members who have made bad financial choices, or have trouble controlling their spending. If your family has financial issues, issues with an unhappy marriage or may be subject to lawsuits then considering a bypass trust may be beneficial.
4. Estate taxes. Ohio no longer has estate taxes, so this is no longer a worry.
5. Your money is making money. The estate tax is on your assets at the time of your death, so maybe you don’t have $10.9 million today, but your money will grow and who is to say you won’t have that or more at the time of your death. You can move future growth out of your spouse’s estate and still allow them to benefit from the assets by leaving some of it to a bypass trust.
6. The IRS regulations. If your executor does not follow the IRS regulations, then any unused exemption could be lost. A bypass trust makes sure that the exemption is used and not lost due to an executor error.
With all this being said, there may be a potential issue to using a bypass trust. When a spouse inherits from their spouse, he increases the basis to their current fair market value. In other words, the asset gets a step up in basis. When the spouse dies, whoever inherits the asset increases the basis again to the current fair market value. When the assets are then distributed to the beneficiaries from the trust the asset will take the same basis the trust had. It does not matter how much time has passed. Assets that have high growth may not be the best asset to place into a bypass trust for this very reason.