I have been updating a married couple’s estate planning documents, which include both community property and separate property trusts. The primary reason for this review was to make certain that all of the assets that can have a stepped up in basis on the death of the first spouse could also be stepped up again on the surviving spouse’s death. The couple’s combined assets are well under the $10.5 million estate tax exclusion amount. Please see the stepped up example below.
During the review of all of the assets to verify that each trust is funded correctly, I discovered that the community property second residence was actually transferred into the husband’s separate property trust. What this would have meant, if his wife had died first, is he could have lost the ability to sell the second residence at little or no capital gain. Today if you live in California, the combined federal and state capital gain rate can be as high as 36.7%. It is almost as high as the estate tax rate of 40%.
Stepped Up Example. Let’s say a couple, Bill and Jane, owns stock worth $100,000 that was purchased for $10,000. If they sold the stock during their lifetime there would be a capital gain of $90,000. If Bill died first, Jane would be able to sell the $100,000 stock and pay no capital gain because both halves of their community property basis of $10,000 steps up to $100,000!!! The same would be true for real property or any other asset that appreciates in value. With rental real estate, Jane would be able to depreciate again the building on the rental property even though prior to Bill’s death the depreciation was completely used by both of them.
The separate property trust includes only the husband’s separate property that he acquired prior to his second marriage. Upon his death this separate property trust provides for his wife during her lifetime with all of the assets to be distributed to his children on his wife’s death. This is a common type of planning arrangement in a mixed marriage situation with different children.
The husband and wife have transferred all of their community property into their community property trust. The community property trust has some similar provisions to the husband’s separate property trust but not identical. Besides possibly losing the stepped up in basis on the second home, there could have been an issue over the final distribution of the second home.
Not only is it important to make certain that your estate planning documents can achieve the goal of avoiding the 36.7% capital gain tax, it is just as important to make certain to review how title to those assets are actually held.