Planning for Non-Citizen Spouses in Large Estates

Planning for Non-Citizen Spouses in Large Estates

By Alan G. Orlowsky

A married couple has special Estate Planning challenges if one spouse is not a citizen of the United States. Federal estate tax law requires that a spouse be a U.S. citizen in order to qualify for the unlimited marital deduction. The primary reason for this law is that the IRS does not want a surviving non-citizen spouse to leave the United States with property that has never been taxed.

The citizen spouse’s estate still has the individual estate tax exemption or applicable exclusion amount ($5,250,000 for 2013), and even though the surviving spouse is not a U.S. citizen there is no federal estate tax on this amount. The problem comes for married couples with large estates that exceed the applicable exclusion amount. The estate of the citizen spouse will have to pay federal estate taxes on everything over that exemption amount unless the surviving non-citizen spouse becomes a citizen before the deceased spouse’s estate tax return is filed, or if the non-citizen spouse is the beneficiary of a special trust called a Qualified Domestic Trust (QDOT).

A QDOT allows the deceased spouse’s estate to postpone paying federal estate tax if the trust meets certain requirements. With a QDOT, at the first spouse’s death, assets go to the trust instead of to the surviving non-citizen spouse, and the spouse can receive income distributions. When the surviving non-citizen spouse dies, the assets in the trust pass to other beneficiaries named in the trust document such as the couple’s children. That is when the estate tax is paid, as if the assets were in the estate of the first spouse to die, not as part of the second spouse’s estate.

In order for a QDOT to work, specific rules must be followed. For example, the trustee who controls the trust must be a U.S. citizen. If trust assets exceed $2,000,000 (very likely in the large estate situation we’re describing), the trustee has to be a U.S. bank or domestic corporation willing to be bonded for most of the value of the trust. The executor of the deceased spouse’s will, or trustee of his or her trust, must make an election on the deceased spouse’s estate tax return to have the trust treated as a QDOT.

 As mentioned, the non-citizen spouse is entitled to distributions of income earned by trust assets, and although the distributions are subject to income tax, they are exempt from estate tax. However, distributions from trust principal to the non-citizen surviving spouse are not allowed – unless the U.S. trustee is given the right to withhold estate taxes on any distributions of principal.

There are also exceptions to the taxation of principal distributions if those distributions fall under the IRS hardship exemption. If the spouse has an “immediate and substantial” need for money relating to “health, maintenance, education or support”—either his own, or that of someone he legally obligated to support—a distribution of trust funds may qualify for a hardship exemption. However, the non-citizen surviving spouse would have to prove that he or she doesn’t have other available assets to meet those needs. 

If you have any questions about planning for Non-Citizen Spouses and how we can help please contact the Law Office of Orlowsky & Wilson by calling 847-325-5559 or visit our website www.orlowskywilson.com for more information. 

In Case of Divorce, Change Your Estate Plan

In Case of Divorce, Change your Estate Plan 

By Alan G. Orlowsky 

In the midst of the trauma of divorce, few couples are thinking first (or at all) about their estate planning. But it is very important that your planning be reviewed by your team of advisers, possibly including your attorney, your financial advisor, your insurance professional, and your CPA. All aspects of your financial situation will be impacted – far beyond alimony payments or the division of assets.

Life Insurance Policies

It’s easy to forget about insurance policies that you’ve owned for decades, so a policy review is important. The first consideration is whether you want your divorcing spouse to be the beneficiary of your life insurance proceeds. Perhaps the beneficiary should be changed to your children, for example.

However, changing the beneficiary is not always an option. Divorcing spouses are considered to still have an “insurable interest” in one another. In fact, if you are paying alimony and/or child support, the court may order you to keep life insurance policies in effect to protect those payments in the event of your death. The court could even order you to purchase life insurance for that purpose if you don’t already own a policy.

Ownership of the policy may also be of concern to the judge because the policy owner controls the beneficiary designations and cash value of the policy. It’s possible that the policy may need to be transferred to an Irrevocable Life Insurance Trust or a trust established to purchase a new policy.

Retirement Plan Accounts

Normally the transfer of an IRA account to another person would be a taxable event. However, it’s not taxable if pursuant to a divorce decree. The spouse who receives the account would become the new owner of the IRA, subject to the normal tax rules going forward. As the new owner of the IRA, he or she could change or name new beneficiaries.

Qualified pension plans are handled differently. If rules are not carefully followed it could jeopardize the plan or cause immediate taxation. Modification of the plan is achieved through a judge’s Qualified Domestic Relations Order (QDRO) which can name the spouse as an alternative payee. The spouse is taxed on receipt of the plan’s funds, but the normal 10% early distribution tax does not apply. The spouse can also roll over the proceeds of the qualified plan to his or her own IRA.

 Your Home

There are beneficial rules regarding capital gains tax that apply to your personal residence. A married couple can exclude up to $500,000 profit in a home sale from capital gains tax if the home was owned and used as a primary residence for at least 2 of the previous 5 years. If the property is sold after the divorce, there are several rules to determine who qualifies as the owner to calculate the exclusion requirements.

If the husband in a divorce case transfers his ownership interests in the home to his wife, and she later sells it, she will only be entitled to the single person’s exclusion of $250,000 instead of the $500,000 exclusion available to married couples. It is often better (from a tax perspective) for the couple to sell the home prior to the divorce so they can use the full $500,000 exclusion, reduce taxes, and then split the proceeds.

Estate Planning Documents

Besides beneficiary designations on retirement plans and insurance policies, you’ll also need to remove the divorcing spouse as your executor, personal representative, trustee, health care agent, attorney under a power of attorney, and any other position of authority over your affairs; as well as any position as beneficiary of your estate.

Other Considerations

In the event of a divorce, there are many other items that should be addressed by your professional advisers as well as those mentioned above. For example, you will no longer file joint tax returns. Each spouse may have a different investment philosophy and risk tolerance which will require reallocating investment assets. The court could consider an inheritance from your parents (or even an anticipated inheritance) in determining property settlements, so you’ll want to put protections in place for that.

Further complicating things is the fact that you may not be able to keep your same advisers – just when you need them most. They may be prevented from working with one or both spouses because of perceived or actual conflicts of interest. It’s also possible that the advisers really have a strong relationship with only one of the spouses, and the other spouse would be better served by a new adviser anyway.

If you have any questions about how to change your estate plan and how we can help please contact the Law Office of Orlowsky & Wilson by calling 847-325-5559 or visit our website www.orlowskywilson.com for more information.