2018 Estate Tax Update
A Legal Moment

2018 Estate & Gift Tax Update

   The Tax Cut and Jobs Act More than Doubles the Unified Exemption Amount Above 2017 Level.

   2018 brings a large increase to the federal unified exemption amount for bequests and lifetime gift-giving, and this significant change warrants careful review of tax planning provisions in existing estate planning documents ‒ as well as consideration of lifetime gift planning.

Estate & Gift Tax (and GST) Exemption Amount for 2018

   The exemption (or “exclusion”) amount for federal estate, gift, and generation-skipping tax (“GST”) was slated under prior law to increase slightly this year, as adjusted for inflation.   Accordingly, in October the IRS announced the 2018 estate and gift tax unified exemption amount (and GST exemption amount) of $5.6 million per person (up from $5.49 million in 2017).  The exemption amount was then doubled by the Tax Cut and Jobs Act signed into law on December 22, 2017 by President Trump.  For 2018, the federal estate and gift tax exemption amount is now $11.2 million per person (which combined, totals $22.4 million for a married couple).  [This is the “unified exemption amount” for the sum total of a person’s “lifetime gifts” (gifts in excess of the applicable annual exclusion amounts in effect when the gifts were made), together with the property passing to beneficiaries upon the donor’s death.]  This figure also represents the current exemption amount for generating-skipping gifts (e.g., gifts to grandchildren).  Estates (and/or lifetime gifts) in excess of $11.2 million are taxed at a maximum rate of 40%.  Generation-skipping transfers in excess of $11.2 million are taxed at an (additional) rate of 40%.  As for future years:  the new law provides for annual inflation increases in the doubled exemption amounts until 2025.  On January 1, 2026 (in absence of future legislation), the exemption amounts are scheduled to revert to the 2017 levels ($5.49 million per person), adjusted for inflation.
   Income tax basis rules remain unchanged, with inherited property (but not lifetime gifts) receiving a reset of basis at date-of-death value.
   North Carolina currently has no state inheritance, estate or gift tax.
Review of Estate Planning Documents for Outdated Provisions
   In contrast to the high current federal estate and gift tax exemption amount, as recently as 2008 the exemption amount was $2 million; in 2003 it was $1 million, and in 2001, it was $675,000.  This change has resulted in many outdated estate plans, and much of the tax-avoidance attention in estate planning (for estates less than the exemption amount) is shifting away from estate tax, focusing instead on income tax considerations ‒ including efforts to maximize stepped-up basis of appreciated assets and avoidance of capital gains.  In general, it is recommended that estate planning documents be reviewed on a regular basis and whenever one experiences significant life changes ‒ or changes in dispositive wishes.  It may also be important to review estate planning documents to make sure estate tax planning contained in earlier documents does not create any unnecessary income tax burden under current tax law ‒ or cause other unwanted, non-tax consequences.
Annual Exemption Gifts & Spousal Gifts

   The federal annual gift exclusion amount increases for 2018 to $15,000 per donee (up from $14,000, the amount for the past five years).  This exclusion allows an individual donor to give an unlimited number of “annual exclusion gifts,” so long as the amount of each gift does not exceed $15,000 per donee during calendar year 2018.  (Generally, married couples can give $30,000 per donee as long as certain measures are taken.)
   Annual exclusion gifts do not use up any of a person’s lifetime “unified exemption amount,” and generally no gift tax return is required.  If you make a gift in excess of $15,000 to one donee, you may still avoid paying a gift tax on the excess by filing a gift tax return (IRS Form 709) and electing to use part of your unused unified lifetime estate and gift tax exemption amount to cover the overage. 

   As in years past, a person may give an unlimited amount to his or her spouse by using the “unlimited gift tax marital deduction,” as long as the donee spouse is a U.S. citizen.  If the donee spouse is not a U.S. citizen, tax-free transfers to the non-citizen spouse are limited to a “super annual exclusion” amount of $152,000 in 2018 (up from $149,000 in 2017).  As with other gifts in excess of annual exclusion amounts, the donor spouse may still avoid tax by filing a gift tax return and electing to use his or her unused lifetime exemption amount to cover the overage.
   All annual exclusion gifts and spousal gifts must be gifts of a “present” interest as opposed to a “future” interest, and further qualifications can apply.  It is recommended that you consult your tax advisor prior to making a particular gift.
Other Tax-Free Gifting

   Gifts to qualified charities may generally be made in unlimited amounts, gift tax-free.  In addition, certain direct payments made on behalf of others are not considered “gifts” at all, and may be made in unlimited amounts.  These include direct payments on behalf of another person to educational institutions for tuition and to medical providers for medical care.  These payments must be made directly to the institutions or providers, however, or they will be treated as gifts to the individuals.  Because certain qualifications apply, it is recommended that you consult your tax advisor before making particular charitable gifts or payments on behalf of others.
Update Reminder

   As you contemplate your gift plans for 2018 and review your current estate planning documents, consider also a review of your beneficiary designations to confirm (1) that the designations are what you think they are, (2) that they continue to conform to your current wishes; and (3) that the designations are properly coordinated with your overall estate plan.
  You can find a discussion of IRA and life insurance beneficiary designations in "IRA and Life Insurance Beneficiary Designations:  Time for a Tune-Up?"



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Gay Vinson is an attorney at Marshall, Roth & Gregory, PC. Her practice is concentrated in trust and estate planning and administration.
  To receive more information on this topic or to suggest topics for future editions of "A Legal Moment," feel free to contact Gay by email ( or telephone (828.281.2100). 

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You may not rely on this content as legal advice for any specific situation, but should instead contact an attorney for specific advice.
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