For now, there is no estate tax in 2010. Everyone expected Congress to address the estate tax issue in 2009 but it did not happen. The House passed a bill that would have permanently kept the 2009 exemption but the Senate failed to vote on the estate tax issue leaving everyone wondering if they will respond during the next session. Without a law passed by Congress, the estate tax will re-appear in 2011 with a reduced exemption from 2009’s $3.5 million to $1 million.
If Congress does enact an estate tax law sometime in 2010, will it be retroactive to January 1, 2010? Would a retroactive law be constitutional? No doubt there will some decedent who dies between January 1, 2010 and the date of the law who has an estate subject to estate taxes. The heirs or beneficiaries of such an individual would certainly litigate the retroactivity issue.
The uncertainty may cause some people to consider review their existing plans to determine the effect of the repeal in 2010 and the effect of a much lower federal estate tax exemption in 2011. Particularly individuals who have taxable estates and bypass or exemption trusts should get a review of their current trust to see if the repeal would have unintended consequences should they pass away. Many trusts have language referring to the federal estate tax exemption to allocate assets among different beneficiaries. Depending on how the trusts are set up, the repeal of the estate tax entirely could have unintended results such as disinheriting a child from a previous marriage or disinheriting a spouse from a second marriage.
If you have questions about the effect of the estate tax repeal and want to make sure your trust will still do what you intended, call us at Law Office of Scott C. Soady, A Professional Corporation to schedule an appointment.