Are Spousal Lifetime Entry Trusts The Proper Match For You? – Wills/ Intestacy/ Property Planning

17 June 2022

Harris Beach

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Spousal Lifetime Access Trusts, or “SLATs,” may be the

ideal vehicle for clients interested in pursuing wealth-transfer

tax planning.

A SLAT is an irrevocable trust created by one spouse for the

primary benefit of the other spouse and, to the extent desired, the

descendants of either or both spouses. The donor-spouse makes a

completed gift to the SLAT but maintains continued access to the

transferred assets indirectly through the beneficiary-spouse’s

beneficial interest in the SLAT. The powers retained by the

donor-spouse and the beneficial interest of the beneficiary-spouse

are tailored so that the assets of the SLAT are not included in

either spouse’s estate for estate tax purposes.

But before deciding whether SLATs may be the right fit, it’s

important to review certain fundamentals of the wealth transfer tax

system.

Background

The federal wealth transfer tax system consists of three

different taxes: 1) estate tax; 2) gift tax; and 3)

generation-skipping transfer tax. The centerpiece of the federal

wealth transfer tax system is the “basic exclusion

amount” (commonly referred to as the “exemption”)

which exempts assets up to a certain value from the imposition of

gift or estate tax.

Taxable gifts made during an individual’s lifetime use up a

donor’s the basic exclusion amount. Any basic exclusion amount

remaining upon the individual’s death is converted into a

credit and applied against the estate tax imposed on the

decedent’s taxable estate. To the extent any amount of the

applicable credit remains unused after reducing the federal estate

tax to zero, such amount is converted back to the basic exclusion

amount and is portable and can be “acquired” by the

surviving spouse for the surviving spouse’s use during lifetime

or at death.

Making substantial gifts now may be beneficial from a wealth

transfer tax planning perspective especially considering current

federal tax law which provides each individual with $12,060,000 of

basic exclusion amount in 2022. However, the basic exclusion amount

will “sunset” back to its 2017 level (approximately

$6,000,000) beginning January 1, 2026. In other words, about

$6,000,000 of tax exemption will be lost if unused prior to 2026!

SLATs are a way to use the basic exclusion amount now without the

donor-spouse relinquishing indirect access to the assets

contributed to the SLAT. Many donors may be understandably

reluctant to make large gifts directly to a spouse, children, and

grandchildren. Outright transfers result in the immediate

relinquishment of control by a donor to the recipient. Once

controlled by the recipient, the assets are subject to the spending

habits and lifestyle choices of the recipient and the assets may be

accessible to the recipient’s creditors including a spouse in

the context of divorce.

Advantages of SLATs

  • Transferring assets to a trust, specifically a SLAT, not only

    allows the donor to dictate the terms governing the transferred

    assets, it also allows the donor to protect the assets from the

    potential creditors of the beneficiaries and from the beneficiaries

    themselves. Uniquely, a SLAT provides continued access to the

    transferred assets to the donor’s spouse such that assets

    remain within the reach of the marital unit and can be accessed if

    needed in the future.
  • The transfer to a SLAT is a taxable gift that uses the

    donor-spouse’s basic exclusion amount and removes the assets

    (and the appreciation on the assets) from the federal taxable

    estate of the donor-spouse and, provided the transfer occurs more

    than three years prior to death, from the donor-spouse’s New

    York state gross estate. If the donor-spouse desires to benefit

    grandchildren and future generations, the GST exemption can be

    applied to accomplish this goal as well making the SLAT a

    dynasty-type trust.
  • Planning with SLATs can be done by each spouse for the primary

    benefit of the other spouse thereby providing each spouse with

    continued access to the assets of the SLAT created for his or her

    respective benefit.

Considerations for SLATs

  • Lifetime gifting to a SLAT is complex and not without

    drawbacks. For example, where both spouses make transfers to SLATs,

    the trust agreements must be sufficiently different and should

    occur at different times so the Internal Revenue Service does not

    unwind the transactions under the “Reciprocal Trust

    Doctrine” thereby eliminating the beneficial tax

    planning.
  • From a tax perspective, since assets transferred to the SLAT

    will not be includible in the donor-spouse’s estate for estate

    tax purposes, the assets transferred to the SLAT will similarly not

    receive an income tax basis adjustment (a “step-up”) upon

    the death of the donor-spouse.
  • The trust agreement will provide an independent trustee with

    the ability to cause SLAT assets to be included in the gross estate

    of the beneficiary-spouse if it is desirable, because it will

    reduce overall taxes to do so.
  • Issues of continued control and governance arise in the context

    of transferring closely-held business interests to a SLAT, as with

    any irrevocable trust. Reorganizing or recapitalizing the

    closely-held business to change the voting structure may be

    necessary.
  • The donor-spouse’s indirect access to the SLAT via the

    beneficiary-spouse’s interest ceases to exist upon the

    beneficiary-spouse’s death or if the spouses divorce.
  • In most cases, a valuation report prepared by a valuation

    expert will be required, and in all cases, a gift tax return will

    be required to be filed.

Bottom line:

The decision to pursue SLATs as a vehicle for transferring

wealth depends on various considerations. To review your estate

planning and discuss SLATs or other wealth transfer tax planning,

please contact our Wills, Trusts and Estates team.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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