120928 Lifetime QTIP

The Power and Functionality of
Lifetime QTIP Planning
Presented by:
Lewis W. Dymond
The Lifetime QTIP Trust
• Part of the WealthDocx® Advanced System.
• An irrevocable trust created by one spouse for
the benefit of the other spouse.
• Completed gift for gift and estate tax purposes.
• Qualifies for unlimited marital gift tax exemption.
• Donor-spouse can be a remainder beneficiary.
Traditional Uses of the Lifetime QTIP
• Increase the value of a non-property spouse to
take full advantage of both applicable exclusion
• Protect assets of one spouse from the claims of
future, unknown creditors by giving those assets
to the other spouse.
• Marital planning agreements.
– Pre-Marital agreements.
– Post-Marital agreements.
– Divorce settlements – pre-decree.
Better than an Outright Gift
• Outright no control in the event of death or
• Lifetime QTIP can control the ultimate
distribution after death even in the event of
– May limit spouse’s access to income only.
– May allow discretionary distributions of principal.
– Provides asset protection from donee-spouse’s
– Determine management and distribution of assets
upon death of donee-spouse.
• Structured distribution to desired beneficiaries.
• Can include donor-spouse as a remainder beneficiary.
Caveat: Divorce Considerations
Lifetime QTIP - marital planning agreement.
– If QTIP may be taken into account in the event of
a divorce, possibly includible in Grantor’s taxable
estate because it discharged a legal obligation.
• IRC §2036(a)(1) – Retained Life Estate.
• Reg. §20.2036-1(b)(2).
• Reg §25.2523(f)-1(d)(1).
– If married, a marital deduction should be allowed.
– Include statement that cannot be used to
discharge a legal support obligation of donorspouse.
– Donor-spouse should not serve as Trustee if
discretionary distribution of principal permitted.
The Lifetime QTIP
• Statutory Authority:
– IRC §2523(f) – Gift to Spouse; Election with
respect to life estate for donee-spouse.
– Treas. Reg. §25.2523(f) – 1. Election with
respect to life estate transferred to doneespouse.
• PLRs – 200406004; 9731009; 9437032
and 8944009.
Drafting the Lifetime QTIP Trust
• An irrevocable trust created by one
spouse for the benefit of the other spouse.
• Completed gift for gift tax purposes.
• Avoid estate tax inclusion in donor’s
• Qualify for unlimited marital gift tax
exemption under IRC §2523(f).
Qualifying for Marital Deduction
• Spouse must be a U.S. citizen; no QDOT.
– Reg. §25.2523(i)-(1)(d), Examples 3 and 4.
– Testamentary gpoa, qualify for $100,000 special
annual exclusion; but only to the extent of the
lifetime income interest.
• Requirements similar to testamentary QTIP
– Right to all income at least annually.
– Right to convert trust property to productive
– No one has power to appoint to anyone other
than spouse.
Drafting the Lifetime QTIP Trust
• Qualifies for unlimited marital gift tax
exemption under IRC §2523(f).
– Must file timely 709 (federal gift tax return).
– Will be included in donee-spouse’s estate
Drafting the Lifetime QTIP Trust
• Principal distributions.
– No requirement that spouse have any right to
distributions of principal.
– Discretionary principal distributions are permitted.
• Donor as Trustee (not recommended).
– Ascertainable standards.
– Retained interest to satisfy support obligation.
Estate of Virgil C. Sullivan, T.C.M. 1993-531 (1993).
• Independent Trustee – not limited to ascertainable
• Donee-spouse – limit to ascertainable standards.
– Is this a retained interest to satisfy support obligation?
Drafting the Lifetime QTIP Trust
• Testamentary power of appointment.
– General power of appointment permissible.
• Not necessary and generally not desired.
• Included in donee-spouse’s estate under IRC §2041.
• Would reverse a reverse QTIP election.
– Limited power of appointment.
• Same considerations as when drafting a testamentary
• Will exist even if there is a divorce.
• Will generally draft permissible appointees more
• Restrict to situations where the donor-spouse is
Distribution upon Death of Donee
• Usual suspects – similar to testamentary
– Descendants or named beneficiaries.
• Donor-spouse can be a remainder
– Reg §25.2523(f)-1(d) – Treatment of interest
retained by the donor-spouse.
“. . . if a donor-spouse retains an interest in qualified
terminable interest property, . . . the retention of the
interest until the donor-spouse's death does not cause
the property subject to the retained interest to be
includible in the gross estate of the donor-spouse.”
– Reg §25.2523(f)-1(f) – Examples 10 and 11.
Donor as Remainder Beneficiary
• Outright distribution to surviving spouse.
– Outright distributions seldom make sense.
– Primary purpose was to use any available
exemption amount of donee-spouse.
• All to a QTIP for the donor-spouse.
– Partial QTIP election to use donee-spouse’s
available exemption amount.
– QTIP election to qualify any amount in excess of
available exemption amount for unlimited marital
– Discretionary principal distributions are
Donor as Remainder Beneficiary
• Drafting in WealthDocx™.
Donor as Remainder Beneficiary
• Creating Marital and Non-Marital Share.
– Non-Marital Share can go to a Bypass trust.
– Bypass trust does not require that all income
be available to the beneficiary/donor-spouse.
– There can be other beneficiaries of a bypass
– Better creditor protection.
Donor as Remainder Beneficiary
• Drafting discretionary guidelines to avoid estate
tax inclusion when donor-spouse is a beneficiary.
– Reg §25.2523(f)-1(d) renders IRC §2036 and §2038
inapplicable in the donor’s estate.
– Reg does not rule out the possible application of
– If under state law donor-spouse’s creditors could
attach the assets in the remainder trust, IRS may
argue the donor-spouse has a general power of
appointment under §2041.
• Palozzi v. Commissioner, 23 T.C. 182 (1954).
• Outwin v. Commissioner, 76 T.C. 153 (1981).
• Rev. Rul. 76-103.
Donor as Remainder Beneficiary
• Drafting to avoid possible general power of
– Limit discretionary distributions to ascertainable
• Creditors rights to assets would then be limited to the
donor-spouse’s interest which in turn is limited to
ascertainable standards.
• The power of appointment created by creditor access
to the trusts would be limited by ascertainable
standards which is an exception to a general power of
– Form the lifetime QTIP under the laws of a state
that does not permit the grantor’s creditors to
access trust assets.
Donor as Remainder Beneficiary
• Donor-spouse can retain a testamentary
limited power of appointment over the trust
– Exercisable only if donor-spouse survives
– PLRs 9437032 and 8944009.
Income Taxation of the QTIP
• The inter vivos QTIP during marriage.
– Donor-spouse will be treated as the grantor of the
trust under IRC §677(a)(1).
• Taxed on all income.
• And principal if donee-spouse is a principal beneficiary.
• Include grantor power to substitute trust property with
other property of equivalent value to invoke IRC
§675(1) to be taxed on capital gains as well.
• Invoking grantor status as to both income and principal
will allow the inter vivos QTIP to hold S corporation
Income Taxation of the QTIP
• The inter vivos QTIP during marriage.
– Grantor trust status will cease if the donorspouse and donee-spouse get divorced.
• IRC §682(a).
• Reg §1.1361-1(k)(1), example 10(ii) as to no
longer qualifying as S corporation stock holder.
• Grantor trust status will obviously
terminate when the Grantor dies.
Income Taxation of the QTIP
• Remainder trusts for benefit of donor-spouse.
– Donor-spouse will continue to be treated as the
grantor of the trust provided the Trustee has
discretion to make distributions of income and
principal to the donor-spouse.
• Reg. §1.671-2(e)(5) – no change in identity of the
grantor unless someone exercises a general power of
appointment over the trust.
• Donor-spouse’s payment of income tax on the trust’s
income does not constitute a taxable gift; Rev. Rul.
• Sometimes referred to as the “Super-Charged Credit
Shelter Trust.”
“Supercharged Credit Shelter Trust” is a servicemark of Prof. Gans, Mr. Blattmachr and Ms. Zeydel.
GSTT Issues and the QTIP
• Taxable distributions – anytime there is a
distribution from a trust.
– Who is the transferor?
– Is the transferee a skip person?
– What is the inclusion ratio?
– GSTT = Amount transferred x I/R x Maximum
FET rate.
GSTT Issues and the QTIP
• Taxable terminations – anytime a
beneficiary’s interest in a trust terminates
(usually by death).
– Who is the transferor?
– Are any of the remaining beneficiaries nonskip individuals?
– What is the inclusion ratio?
– GSTT = Amount of property in trust x I/R x
maximum FET rate.
GSTT Issues and the QTIP
• Transferor.
– A GSTT transferor is the person most recently
subject to estate or gift taxes with respect to the
property. IRC §2652(a)(1); Reg §26.2652-1(a)(1).
– Normally, this would mean that the donee-spouse
would become the transferor upon death of
– The donor-spouse of a lifetime QTIP may make a
reverse QTIP election, whereby the donor
continues to be treated as the transferor rather
than the surviving spouse. IRC §2652(a)(3); Reg
§§25.2552-1(a)(3), 26.2652-1(a)(5), Ex. 3, 6; and
GSTT Issues and the QTIP
• Inclusion ratio.
– Zero = exempt trust.
– I/R = 1 – A/F.
– A/F = GST Exemption Allocated to the transfer
Amount of the transfer
GSTT Issues and the QTIP
• Inclusion ration - to exempt or not to
exempt, that is the question.
– Who will be the transferees?
– Will there be any taxable terminations?
GSTT Issues and the QTIP
• Whose exemption to use?
– Donor-spouse – allocation can be made at the
initial funding of the lifetime QTIP.
• Future growth covered.
• Certainty of inclusion ratio.
• Uncertainty of whether there will be taxable
distributions or terminations.
– Donee-spouse – allocation can’t be made
until the death of the donee-spouse.
• Assets may have grown significantly.
• Donor has no control over inclusion ratio.
Payment of Estate Taxes
• The lifetime QTIP will be included in the
donee-spouse’s estate under IRC §2044.
– The QTIP trust property is valued in the estate
of the donee-spouse at the donee-spouse’s
date of death values. Reg §20.2044-1(d).
Allocating Estate Taxes
• The executor of the donee-spouse’s estate is
entitled to recover from the QTIP trust the estate
tax caused by the inclusion. IRC §2207A.
• The donee-spouse can specifically waive the right
of recovery in his or her will.
– The waiver must refer to QTIP, QTIP trust, or IRC
§2044 or §2207A. IRC §2207A(a)(2).
– Without waiver there is a gift by donee-spouse estate
beneficiaries to QTIP trust remainder beneficiaries.
– Reg §20.2207A-1(a)(3) – to the extent the spouse’s
will waives or if beneficiaries can’t compel recovery,
no gift.
• Giving discretion to the executor to waive means
beneficiaries can’t compel.
• Therefore no gift.
Allocating Estate Taxes
• If donor-spouse allocated GST Exemption so
lifetime QTIP has inclusion ratio of zero.
– A reverse QTIP should be made at time Form 709 is
– Donee-spouse should provide in his or her will that
the executor waive right to recover estate taxes from
estate inclusion.
• If no GST Exemption was allocated upon creation.
– No reverse QTIP should be made.
– Upon death of donee-spouse, he or she will be
transferor for GSTT purposes for remainder trusts.
– Executor will need to recover any estate taxes from
QTIP unless given the discretion to waive or directed
to waive.
Allocating Estate Taxes
– If upon death of donee-spouse all remaining
property is allocated to QTIP for benefit of
donor-spouse or a zero-out estate tax marital
formula is used, there should be no estate tax
upon death of donee-spouse.
• If donor-spouse allocated sufficient GST
Exemption for a zero inclusion ratio and reverse
QTIP election was made, donor-spouse should
provide in his or her will that his or her executor
waive the right to recover any estate taxes from
the resultant remainder QTIP for his or her benefit.
Allocating Estate Taxes
• Upon death of donor-spouse after death of
– Any property allocated to a remainder bypass
trust should not be included in donor-spouse’s
– Any property allocated to a QTIP would be
listed on Schedule M of donee-spouse and
included in the estate of the donor-spouse,
except to the extent of a partial QTIP election.
Drafting the Lifetime QTIP using

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