April 8, 2010 at 5:25 pm EDT | by Joseph Kapp
2011 may be a very taxing year for same-sex couples, regardless of marital status

Congratulations, you assembled your friends and family and got married in Washington DC. Now it is recognized in both DC and Maryland. It’s the moment of a lifetime and a moment you’ve been waiting for.

Well, guess what? The IRS doesn’t care! That’s right, to the IRS, you are still strangers according the law. If your estate and retirement plans include leaving your partner your estate, next year may well prove to be a expensive year to die regardless of marital status!

Thanks to the Defense of Marriage Act, even though same-sex couples can now get married in Washington DC and have it recognized in the state of Maryland, the IRS still does not recognize the validity of that marriage. As a result, unlike heterosexual married couples who can pass an unlimited amount of assets between spouses at death, same-sex couples can be hit with the Federal estate tax, regardless of marriage status. Understanding how the Federal estate tax rules work and following a couple of action items could significantly reduce or entirely eliminate this tax.

The Federal estate tax is due when a person leaves assets above a certain dollar amount to someone other than a heterosexual married spouse. Straight married couples get a free pass called the unlimited martial deduction. In 2010 only, there is an unlimited exemption. But, you may owe capital gains tax on any appreciation. Each estate can exempt $1.3 million of gains from the carryover basis rule. Another $3 million exemption applies to assets inherited from a spouse.

In 2011, however, unless Congress acts, Federal estate tax rules change. As a result, same-sex couples could witness a significant tax bite if a partner dies next year. Straight married couples won’t have this problem since the IRS continues to give them a free pass with the unlimited martial deduction.

Next year, at the death of a partner, the value of any estate above $1 million will be taxed at 55%.

Think you don’t have a $1 million, well think again!

How the IRS calculates your gross estate for Federal estate tax purposes probably includes some items you likely wouldn’t count. It also means that many more gay and lesbian couples will feel this tax bite, if you don’t plan properly. The largest impact will likely be felt by older gay and lesbian couples, who are nearing retirement and have built up retirement assets over the course of their life. This becomes an issue as they rely on their partner’s asset to maintain financial independence.

How the IRS calculates the Federal Estate Tax:

To determine whether an estate is hit by the Federal estate tax, it is important to understand how the IRS calculates the Federal Estate Tax. For the purposes of the estate tax calculation, the IRS includes almost everything. Yep, add up all the assets, including personal assets, cars, collections, art, etc. The biggest ticket items usually include the following:

• savings and checking accounts, CDs;
• brokerage or investment accounts;
• retirements accounts like IRAs, Roth IRAs, 401(k)s, 403(b)s or TSP plan assets;
• personal property such as boats, paintings, collections, etc.;
• real estate titled in the decedent’s own name or the percentage portion that is titled • as tenants in common;
• the gross value of life insurance proceeds in the decedent’s own name;
• property that is titled as joint tenants with rights of survivorship (which allows the property to pass automatically to a partner at death, the way many gay and lesbian couples have their homes titled).

The last two bullets are important and frequently overlooked. Most people know that life insurance passes INCOME tax free, but if it is owned by the person who dies, the IRS includes the entire amount of the life insurance proceeds in the total amount of the ESTATE tax calculation. As a result, if you own a $500,000 life insurance policy in your name and have your partner as the beneficiary, your estate increases by $500,000

The IRS also includes the gross value, less any mortgages on property titled as Joint Tenants with Rights of Survivorship (JWROS) in the estate of the first person to die UNLESS payments or contributions can be proven.

Let’s take a look at a hypothetical example: Mark age 55 and Max age 60 are looking to retire in 5 years. They own a $550,000 home with a $50,000 mortgage titled as joint tenants with rights of survivorship. Max has been paying the mortgage, while Mark has been paying all the living expenses. Max also owns two life insurance policies: one from work which is worth $250,000 and a personal policy worth also $250,000. His 401(k) has taken a hit with the market but is still valued at $425,000 and he has a rollover IRA with $25,000. He also has a brokerage account worth $25,000 and a $25,000 CD.

While drinking a martini in Rehoboth, Max accidently chokes on an olive and dies. Unless Congress acts, here’s how the IRS will calculate the estate in 2010 versus 2011.

Note that because Max made all the contributions, the IRS adds the home to his estate, even though it is titled jointly. Mark could not show that he contributed to the mortgage payments. He was paying for the utilities, car payments, etc.

In 2011, Mark has to pay $275,000 in Federal estate taxes. Again, straight married couples pay zilch, zero, nada! Mark still walks away with a cool $1,225,000, right?

Well, not exactly. Because Mark will continue to live in the home that part of the estate is not liquid or immediately accessible. If the value of the house is removed, the actual cash amount that he receives from the estate is reduced to $725,000 or ($1,500,000 less $500,000 (the value of the home) less $275,000 (the estate taxes)).

Mark, like any heterosexual married beneficiary, is going to have to pay legal/probate fees. In addition, Mark will also have to pay Federal income taxes on the 401(k) and IRA money when he starts taking distribution. In the worse case scenario, if he pulled out all those funds in a lump sum, the tax could be taxed up to 35%.

The question then becomes will Mark, who has a life expectancy of an additional 24.37 years according to Social Security table, have enough assets to live at least that long without running out of money.

The estate tax is often considered a voluntary tax because with proper advanced planning, Max and Mark could have significantly reduced their overall estate tax burden. By re-structuring some of their assets today, they could reduce their estate size to potentially pay zero Federal estate taxes. That’s right, zero, zilch, nada!

The question then becomes, where is a good place to spend the $275,000 that would otherwise have gone to estate taxes, a problem we would all like to have!

What to do:

• Calculate the gross estate including all your assets. Be sure to calculate it the way the IRS does.
• Review your estate planning documents and beneficiary designations.
• Review the titling of all your assets to determine in to whose estate the asset falls.
• Review the ownership of your life insurance including both your personal and work. The current ownership structure of the life insurance could simply be increasing the amount you will be paying to the IRS. By retitling the ownership of the life insurance to either a trust or putting it in your partner’s name you may be able to remove it from your estate. Use caution, however, because retitling assets incorrectly could trigger a costly current gift tax if not done correctly.
• Review how your home is titled and who is making payments on the mortgage. It is common for one partner to pay the mortgage while the other pays for other expenses. This could cause an estate trap because it may be difficult to substantiate payments into a jointly owned home. Retitling your home incorrectly could trigger a costly current gift tax of 55% if not done correctly. In some jurisdictions, even if it is done correctly, it may trigger a local transfer tax.
• Consult a professional to determine what is the best way to structure your estate and minimize your estate taxes.

The information provided is for general information. It is not intended to be all-inclusive on estate taxes.

Nicholas Burkholder and Joseph Kapp (joseph.kapp@lfg.com) are registered representatives and investment advisor representatives with Lincoln Financial Advisors Corp., a broker/dealer (member SIPC) and registered investment advisor, offering insurance through Lincoln affiliates and other fine companies. This information should not be construed as legal or tax advice. You may want to consult a legal or tax advisor regarding this material as it relates to your personal circumstances. The content of this material was provided to you by Lincoln Financial Advisors for its representatives and their clients. CRN201004-2040969

  • The burden on the survivor is especially onerous now that the Fed has kept interest rates artificially low. The federal estate tax will take most of my liquid assets, leaving my house and some savings accounts to provide for my partner’s support for the rest of his life. A straight married couple would not have to pay anything until the second spouse dies. One of my savings accounts has a balance of $27,000 and earned $11.00 last month.

    This is a prime example of the discrimination endured by gay people.

  • And Barney Frank is one of the leading figures of financial reform! Ha!! Sure – get LGBT officials elected and then evvvvverything will change for us. yeah right… the reason they won’t change this is because they cant tie it to benefiting the “religious orders” too… like Catania did with DC marriage, and Obama just did with the extreme-narrowly focused hospital visitation rights.

    Why must our every step forward only be in association with a corresponding christ-ian benefit??????? Why is more discrimination like this built into every step towards non-discrimination????? They do it in the name of “balanced views” etc and it needs to stop. It’s making me very UNbalanced! haha

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