Credit shelter trusts

Author

Edward Jones - Chad Choate, AAMS

Posted on

Mar 28, 2024

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A credit shelter trust is an estate-planning strategy for married couples. This type of trust may provide control over the assets for the creator of the trust and tax efficiency for the surviving spouse and beneficiaries. It is also sometimes known as a bypass trust or family trust.

A credit shelter trust allows you to set aside a certain portion of your assets upon your death. There are a variety of reasons to discuss a credit shelter trust with your estate-planning attorney.

Control over assets

The spouse who sets up the trust can determine how the assets will be distributed. The surviving spouse can receive income and principal from the trust during his or her lifetime. When he or she passes away, the remaining amount in the trust goes to the beneficiaries designated by the spouse who created the trust.

This type of trust can be helpful in cases where the creator of the trust wants to control the distribution of the assets after his or her death. This is common with second or later marriages, where the creator of the trust has his or her own children and would like for them to inherit their separate assets.

Creditor claims protection

A credit shelter trust can help protect assets from claims by divorcing spouses, spouses from subsequent marriages and creditors. Generally, creditors cannot access the principal in the trust to meet their claims against the trust beneficiaries.

Federal estate tax exclusion

A credit shelter trust allows a married couple to benefit from the federal estate tax exclusion of the first spouse to die so trust assets are sheltered from future estate tax. Any growth or appreciation of those assets while in the trust is similarly protected from estate tax.

A portability provision gives married couples a chance
to save an unused exclusion amount without a credit shelter trust (see “Federal Estate Tax and Portability” in the blue section to the right). However, assets passed via

portability are not protected from generation-skipping transfer (GST) taxes, nor do they have the control or creditor protection advantages of a credit shelter trust.

State estate tax exclusion

Several states have their own state estate tax in addition to the federal estate tax. A credit shelter trust may be the only option to use the state estate tax exclusion of the first spouse to die.

Federal estate tax and portability

The American Taxpayer Relief Act of 2012
updated the federal estate tax exclusion amount and provided for occasional increases to offset inflation. The Tax Cuts and Jobs Act enacted in 2017 made increases to the exclusion amount through 2025. In 2024, you may be able to transfer up to $13.61 million (up from $12.92 million in 2023) at your death free from federal estate tax. Any amount exceeding the exclusion can be taxed up to 40%.

The portability provision states that when a person passes away, the surviving spouse may “retain” the deceased spouse’s unused exclusion amount. For instance, if a husband dies in 2024, his wife may be able to use their full $27.22 million exclusion (up from $25.84 million in 2023) without planning for it. There are certain tax-filing requirements that must be satisfied to take advantage of this option. You should talk with your qualified tax advisor about your situation.

Proactive planning can help ensure you have control over your estate and benefit from tax- saving strategies.


You may think the portability provision means you don’t need to plan to protect your legacy and reduce estate tax; however, that may not necessarily be the case. Although portability, in some situations, may provide advantages to some married couples, considering a credit shelter trust could have benefits for you and your family. You should work with your estate-planning attorney and tax advisor to determine the appropriate plan for you.

Portability (transfer to spouse)

Credit shelter trust

The surviving spouse has full access and control over all the assets.

The spouse who sets up the trust designates the beneficiaries. The surviving spouse and/or other beneficiaries may receive benefits from the assets in the trust during their lifetimes.

Growth of the assets may be subject to estate taxes when the surviving spouse dies.

Growth of the assets in the trust generally is not taxed for estate tax purposes upon the death of the surviving spouse.

Assets can be subject to creditor claims.

Assets are typically protected from creditor claims.

Assets may be subject to state estate taxes.

Assets may not be subject to state estate taxes.

All assets, including those from the first spouse to die, generally get a full step-up in cost basis at the surviving spouse’s death.

Assets do not get a step-up in cost basis at the surviving spouse's death.

Portability exclusion does not apply to federal GST taxes.

With proper planning, assets may not be subject to GST taxes.


What is a step-up in cost basis?

Cost basis generally is the price you paid for an asset. If you buy a stock for $5 per share, your basis is $5. If you still own that stock at death and the fair market value is $10, your estate may get a step-up in basis to the fair market value at your death. So, your estate holds the stock with a $10 basis, allowing your estate to pass assets to your beneficiaries at the new basis or to sell the asset, potentially without capital gain. This typically means less income tax burden for your beneficiaries as they inherit your assets.

Review your plan regularly

During the past 10 years, estate tax laws have constantly changed. That’s why it’s important to remain diligent when working toward your long-term investing and estate goals.

It’s important to review your estate plan every three to five years. You should also review it when changes in estate tax law occur or when your life circumstances change, such as a birth, marriage, divorce or death in the family.



Chad Choate III, AAMSTM Financial Advisor

828 3rd Ave W
Bradenton, FL 34205-8665 941-462-2445

Your estate-planning attorney, tax advisor and financial advisor can work with you to determine what’s best for your situation.


 

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