Estate tax in the United States

The "gross estate" for federal estate tax purposes often includes more property than that included in the "probate estate" under the property laws of the state in which the decedent lived at the time of death. The gross estate (before the modifications) may be considered to be the value of all the property interests of the decedent at the time of death. To these interests are added the following property interests generally not owned by the decedent at the time of death:

• the value of property to the extent of an interest held by the surviving spouse as a "dower or curtesy";[12]
• the value of certain items of property in which the decedent had, at any time, made a transfer during the three years immediately preceding the date of death (i.e., even if the property was no longer owned by the decedent on the date of death), other than certain gifts, and other than property sold for full value;[13]
• the value of certain property transferred by the decedent before death for which the decedent retained a "life estate", or retained certain "powers";[14]
• the value of certain property in which the recipient could, through ownership, have possession or enjoyment only by surviving the decedent;[15]
• the value of certain property in which the decedent retained a "reversionary interest", the value of which exceeded five percent of the value of the property;[16]
• the value of certain property transferred by the decedent before death where the transfer was revocable;[17]
• the value of certain annuities;[18]
• the value of certain jointly owned property, such as assets passing by operation of law or survivorship, i.e. joint tenants with rights of survivorship or tenants by the entirety, with special rules for assets owned jointly by spouses.;[19]
• the value of certain "powers of appointment";[20]
• the amount of proceeds of certain life insurance policies.[21]

The above list of modifications is not comprehensive.

As noted above, life insurance benefits may be included in the gross estate (even though the proceeds arguably were not "owned" by the decedent and were never received by the decedent). Life insurance proceeds are generally included in the gross estate if the benefits are payable to the estate, or if the decedent was the owner of the life insurance policy or had any "incidents of ownership" over the life insurance policy (such as the power to change the beneficiary designation). Similarly, bank accounts or other financial instruments which are "payable on death" or "transfer on death" are usually included in the taxable estate, even though such assets are not subject to the probate process under state law.

Once the value of the "gross estate" is determined, the law provides for various "deductions" (in Part IV of Subchapter A of Chapter 11 of Subtitle B of the Internal Revenue Code) in arriving at the value of the "taxable estate." Deductions include but are not limited to:

• Funeral expenses, administration expenses, and claims against the estate;[22]
• Certain charitable contributions;[23]
• Certain items of property left to the surviving spouse.[24]
• Beginning in 2005, inheritance or estate taxes paid to states or the District of Columbia.[25]

Of these deductions, the most important is the deduction for property passing to (or in certain kinds of trust, for) the surviving spouse, because it can eliminate any federal estate tax for a married decedent. However, this unlimited deduction does not apply if the surviving spouse (not the decedent) is not a U.S. citizen.[26] A special trust called a Qualified Domestic Trust or QDOT must be used to obtain an unlimited marital deduction for otherwise disqualified spouses.[27]

The tentative tax is based on the tentative tax base, which is the sum of the taxable estate and the "adjusted taxable gifts" (i.e., taxable gifts made after 1976). For decedents dying after December 31, 2009, the tentative tax will, with exceptions, be calculated by applying the following tax rates:

--Internal Revenue Code section 2001(c), as amended by section 302(a)(2) of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (H.R. 4853), Pub. L. No. 111-312, 124 Stat. 3296, 3301 (Dec. 17, 2010), as amended by section 101(c)(1) of the American Taxpayer Relief Act of 2012; see "Instructions for Form 706 (Rev. August 2013)," page 5, Internal Revenue Service, U.S. Dep't of the Treasury, at (PDF)

The tentative tax is reduced by gift tax that would have been paid on the adjusted taxable gifts, based on the rates in effect on the date of death (which means that the reduction is not necessarily equal to the gift tax actually paid on those gifts).

There are several credits against the tentative tax, the most important of which is a "unified credit" which can be thought of as providing for an "exemption equivalent" or exempted value with respect to the sum of the taxable estate and the taxable gifts during lifetime.

For a person dying during 2006, 2007, or 2008, the "applicable exclusion amount" is $2,000,000, so if the sum of the taxable estate plus the "adjusted taxable gifts" made during lifetime equals $2,000,000 or less, there is no federal estate tax to pay. According to the Economic Growth and Tax Relief Reconciliation Act of 2001, the applicable exclusion increased to $3,500,000 in 2009, and the estate tax was repealed for estates of decedents dying in 2010, but then the Act was to "sunset" in 2011 and the estate tax was to reappear with an applicable exclusion amount of only $1,000,000.

The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 became law on December 17, 2010. The 2010 Act changed, among other things, the rate structure for estates of decedents dying after December 31, 2009, subject to certain exceptions. It also served to reunify the estate tax credit (aka exemption equivalent) with the federal gift tax credit (aka exemption equivalent). The gift tax exemption is equal to $5,250,000[28] for estates of decedents dying in 2013, and $5,340,000 for estates of decedents dying in 2014.[29]

The 2010 Act also provided portability to the credit, allowing a surviving spouse to use that portion of the pre-deceased spouse's credit that was not previously used (e.g. a husband died, used $3 million of his credit, and filed an estate tax return. At his wife's subsequent death, she can use her $5 million credit plus the remaining $2 million of her husband's). If the estate includes property that was inherited from someone else within the preceding 10 years, and there was estate tax paid on that property, there may also be a credit for property previously taxed.

Because of these exemptions, only the largest 0.2% of estates in the US will have to pay any estate tax.[7]

Before 2005, there was also a credit for non-federal estate taxes, but that credit was phased out by the Economic Growth and Tax Relief Reconciliation Act of 2001.

The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 authorizes the personal representative of estates of decedents dying on or after January 1, 2011, to elect to transfer any unused estate tax exclusion amount to the surviving spouse, in a concept known as portability. The amount received by the surviving spouse is called the deceased spousal unused exclusion, or DSUE, amount. If the personal representative of the decedent's estate elects transfer, or portability, of the DSUE amount, the surviving spouse may apply the DSUE amount received from the estate of his or her last deceased spouse against any tax liability arising from subsequent lifetime gifts and transfers at death. The portability exemption is claimed by filing Form 706, specifically Part 6 of the estate tax return. Whether the personal representative has an obligation to make the portability election is presently unclear.

For estates larger than the current federally exempted amount, any estate tax due is paid by the executor, other person responsible for administering the estate, or the person in possession of the decedent's property. That person is also responsible for filing a Form 706 return with the Internal Revenue Service (IRS). In addition, the form must be filed if the decedent's spouse wishes to claim any of the decedent's remaining estate/gift tax exemption.

The return must contain detailed information as to the valuations of the estate assets and the exemptions claimed, to ensure that the correct amount of tax is paid. The deadline for filing the Form 706 is 9 months from the date of the decedent's death. The payment may be extended, but not to exceed 12 months, but the return must be filed by the 9-month deadline.

As noted above, a certain amount of each estate is exempted from taxation by the law. Below is a table of the amount of exemption by year an estate would expect. Estates above these amounts would be subject to estate tax, but only for the amount above the exemption.

For example, assume an estate of $3.5 million in 2006. There are two beneficiaries who will each receive equal shares of the estate. The maximum allowable credit is $2 million for that year, so the taxable value is therefore $1.5 million. Since it is 2006, the tax rate on that $1.5 million is 46%, so the total taxes paid would be $690,000. Each beneficiary will receive $1,000,000 of untaxed inheritance and $405,000 from the taxable portion of their inheritance for a total of $1,405,000. This means the estate would have paid a taxable rate of 19.7%.

As shown, the 2001 tax act would have repealed the estate tax for one year (2010) and would then have readjusted it in 2011 to the year 2002 exemption level with a 2001 top rate. That is, had no further legislation been passed, the estate of a person who died in the year 2010 would have been entirely exempt from tax while that of a person who died in the year 2011 or later would have been taxed as heavily as in 2001. However, on December 17, 2010, Congress passed the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010. Section 301 of the 2010 Act reinstated the federal estate tax. The new law set the exemption for U.S. citizens and residents at $5 million per person,[33] and it provided a top tax rate of 35 percent for the years 2011 and 2012.[34]

On January 1, 2013, the American Taxpayer Relief Act of 2012 was passed which permanently establishes an exemption of $5 million (as 2011 basis with inflation adjustment) per person for U.S. citizens and residents, with a maximum tax rate of 40% for the year 2013 and beyond.[35]

The permanence of this regulation is not ensured: the fiscal year 2014 budget called for lowering the estate tax exclusion, the generation-skipping transfer tax and the gift-tax exemption back to levels of 2009 as of the year 2018.[36] The exemption amounts of $11,180,000 in 2018 and $11,400,000 in 2019 are also currently (as of December 2018) scheduled to sunset 12/31/2025 (Tax Cuts and Jobs Act of 2017).

A decedent who is a U.S. citizen born in Puerto Rico and resident at the time of death in a U.S. possession (i.e., PR) is generally treated, for federal tax purposes, as though he or she were a nonresident who is not a citizen of the United States,[37] so the $5 million exemption does not apply to such a person's estate. For U.S. estate tax purposes, a U.S. resident is someone who had a domicile in the United States at the time of death. A person acquires a domicile by living in a place for even a brief period of time, as long as the person had no intention of moving from that place.[38]

The $11.2 million exemption specified in the Acts of 2010 and 2012 (cited above) applies only to U.S. citizens or residents, not to non-resident aliens. Non-resident aliens have a $60,000 exclusion instead; this amount may be higher if a gift and estate tax treaty applies.

For estate tax purposes, the test is different in determining who is a non-resident alien, compared to the one for income tax purposes (the inquiry centers around the decedent's domicile). This is a subjective test that looks primarily at intent. The test considers factors such as the length of stay in the United States; frequency of travel, size, and cost of home in the United States; location of family; participation in community activities; participation in U.S. business and ownership of assets in the United States; and voting. A foreigner can be a U.S. resident for income tax purposes, but not be domiciled for estate tax purposes.

A non-resident alien is subject to a different regime for estate tax than U.S. citizens and residents. The estate tax is imposed only on the part of the gross non-resident alien's estate that at the time of death is situated in the United States. These rules may be ameliorated by an estate tax treaty. The U.S. does not maintain as many estate tax treaties as income tax treaties, but there are estate tax treaties in place with many of the major European countries, Australia, and Japan.

U.S. real estate owned by a non-resident alien through a foreign corporation is not included in a non-resident alien's estate. The corporation must have a business purpose and activity, lest it be deemed a sham designed to avoid U.S. estate taxes.

The estate tax of a deceased spouse depends on the citizenship of the surviving spouse.

All property held jointly with a surviving noncitizen spouse is considered to belong entirely to the gross estate of the deceased, except for the extent the executor can substantiate the contributions of the noncitizen surviving spouse to the acquisition of the property.[39]

U.S. citizens with a noncitizen spouse do not benefit from the same marital deductions as those with a U.S. citizen spouse.

Furthermore, the estate tax exemption is not portable among spouses if one of the spouses is a noncitizen.

Proponents of the estate tax argue that large inheritances (currently those over $5 million) are a progressive and fair source of government funding. Removing the estate tax, they argue, favors only the very wealthy and leaves a greater share of the total tax burden on working taxpayers. Proponents further argue that campaigns to repeal the tax rely on public confusion about the estate tax and about tax policy more generally.[49][50] William Gale and Joel Slemrod give three reasons for taxing at the point of inheritance in their book Rethinking Estate and Gift Taxation. "First, the probate process may reveal information about lifetime economic well-being that is difficult to obtain in the course of enforcement of the income tax but is nevertheless relevant to societal notions of who should pay tax. Second, taxes imposed at death may have smaller disincentive effects on lifetime labor supply and saving than taxes that raise the same revenue (in present value terms) but are imposed during life. Third, if society does wish to tax lifetime transfers among adult households, it is difficult to see any time other than death at which to assess the total transfers made."

While death may be unpleasant to contemplate, there are good administrative, equity, and efficiency reasons to impose taxes at death, and the asserted costs appear to be overblown.

— William Gale and Joel Slemrod

In response to the concern that the estate tax interferes with a middle-class family's ability to pass on wealth, proponents point out that the estate tax currently affects only estates of considerable size (over $5 million, and $10 million for couples) and provides numerous credits (including the unified credit) that allow a significant portion of even large estates to escape taxation.[51] Proponents note that abolishing the estate tax will result in tens of billions of dollars being lost annually from the federal budget.[52] Proponents of the estate tax argue that it serves to prevent the perpetuation of wealth, free of tax, in wealthy families and that it is necessary to a system of progressive taxation.[53]

A driving force behind support for the estate tax is the concept of equal opportunity as a basis for the social contract. This viewpoint highlights the association between wealth and power in society – material, proprietary, personal, political, social. Arguments that justify wealth disparities based on individual talents, efforts, or achievements, do not support the same disparities where they result from the dead hand. These views are bolstered by the concept that those who enjoy a privileged position in society should have a greater obligation to pay for its costs. The strength of political opposition to the estate tax, proponents argue, would not be found under a veil of ignorance, in which policy makers were kept from knowing the wealth of their own families.[54]

Winston Churchill argued that estate taxes are "a certain corrective against the development of a race of idle rich". This issue has been referred to as the "Carnegie effect," for Andrew Carnegie. Carnegie once commented, "The parent who leaves his son enormous wealth generally deadens the talents and energies of the son, and tempts him to lead a less useful and less worthy life than he otherwise would'." Some research suggests that the more wealth that older people inherit, the more likely they are to leave the labor market.[55] A 2004 report by the Congressional Budget Office found that eliminating the estate tax would reduce charitable giving by 6–12 percent.[56] Chye-Ching Huang and Nathaniel Frentz of the Center on Budget and Policy Priorities assert that repealing the estate tax "would not substantially affect private saving...." and that repeal would increase government deficits, thereby reducing the amount of capital available for investment.[57] In the 2006 documentary, The One Percent, Robert Reich commented, "If we continue to reduce the estate tax on the schedule we now have, it means that we are going to have the children of the wealthiest people in this country owning more and more of the assets of this country, and their children as well.... It's unfair; it's unjust; it's absurd."

Proponents of the estate tax tend to object to characterizations that it operates as a "double tax." They point out many of the earnings subject to estate tax were never taxed because they were "unrealized" gains.[51] Others describe this point as a red herring given common overlapping of taxes. Chye-Ching Huang and Nathaniel Frentz of the Center on Budget and Policy Priorities assert that large estates "consist to a significant degree of 'unrealized' capital gains that have never been taxed...."[57]

Supporters of the estate tax argue there is longstanding historical precedent for limiting inheritance, and note current generational transfers of wealth are greater than they have been historically. In ancient times, funeral rites for lords and chieftains involved significant wealth expenditure on sacrifices to religious deities, feasting, and ceremonies. The well-to-do were literally buried or burned along with most of their wealth. These traditions may have been imposed by religious edict but they served a real purpose, which was to prevent accumulation of great disparities of wealth, which, estate tax proponents suggest, tended to avoid destabilizing societies and prevented social imbalance, eventual revolution, or disruption of functioning economic systems.

Economist Jared Bernstein has said: "People call it the 'Paris Hilton tax' for a reason, we live in an economy now where 40 percent of the nation's wealth accumulates to the top 1 percent. And when these folks leave bequests to their heirs, we're talking about bequests in the tens of millions".[58]

Free market supporters of the tax, including Adam Smith[59] and the founding fathers[60] would argue that people should be able to get to the top of the market through earning wealth, based on meritocratic competition, not through unearned, inherited handouts, which were central to the aristocratic systems they were opposed to, and fought the War of Independence to free American citizens from. Smith wrote:

A power to dispose of estates for ever is manifestly absurd. The earth and the fulness of it belongs to every generation, and the preceding one can have no right to bind it up from posterity. Such extension of property is quite unnatural.[60]

Unearned transfers of wealth work against the free market by creating a disincentive of hard work in the recipients, and others in the market.[61] If the income from estate tax is reduced, this would have to be made up broadly through taxes on working people. Accordingly, if estate tax was increased relative to other taxes, Irwin Stelzer argues it could pay for "lowering the marginal tax rate faced by all earners. Reduce taxes on the pay for that extra work, and you will get more of it; reduce taxes on the profits from risk-taking, and entrepreneurs will take more chances and create more jobs. Reduce the taxes on recipients of inheritances, on the other hand, and they will work less and be less likely to start up new businesses..".[59]

Unhindered inheritance has another possible influence on some in the market; if many of the wealthiest in the country acquired their wealth through inheritance, while contributing nothing to the market personally to get there, people at the lower end of the market may have equal economic potential as many of those receiving some of this 40 percent of wealth, but did not have the luck of being born to wealthy parents. The disparity in fair chance of acquiring initial wealth, on top of pre-existing differences in non fiscal sustenance like differing qualities of education, inherited work ethic, and valuable connections, causes resentment and the perception that hard work is of diminished importance, when some, due to bad luck will struggle to afford the basics of living even at maximum effort, while others may never need to work, and even present this lifestyle as ideal.. The disparity in initial gifted wealth also means a reduced ability for some to accumulate wealth; it is a lot easier to put money aside if you inherited a house and do not have to rent one.[61] These factors create a system perceived to be rigged against those who are not lucky enough to be born into wealthy families, along with political instability; continuous infighting and even civil wars.[62] Reducing estate tax exacerbates this situation, while increasing estate tax promotes a fairer free market, especially if this excess wealth is used to encourage productivity, while also encouraging wealthy parents to focus on providing the best skills and education for their children.[59] Michael J. Graetz has said: "Indeed, that's what the case for the estate tax boils down to: basic fairness. The tax affects a small number of people who inherit large amounts of wealth—and who can afford to give up a portion of their windfall to help finance their government."[63]

Some proponents of a steep estate tax argue that concentrating wealth in the hands of a few is harmful to both the economy and to democracy itself. Oscar Mayer heir Chuck Collins writes "Billionaires are expanding their shares of the pie at the expense of investments in our social safety net, infrastructure, and education systems," and notes that "Supreme Court Justice Louis Brandeis observed, 'You can have concentrated wealth in the hands of a few or democracy. But you can’t have both.'"[64]

Some people oppose the estate tax on principle of individualism and a market economy. In their view, proponents of the tax often argue that "excess wealth" should be taxed without defining "excess" or explaining why taxing it is undesirable if it was acquired by legal means. Such arguments are seen to have a predilection for collectivist principles that opponents of the estate tax oppose.[65][66][67] In arguing against the estate tax, the Investor's Business Daily has editorialized that "People should not be punished because they work hard, become successful and want to pass on the fruits of their labor, or even their ancestors' labor, to their children. As has been said, families shouldn't be required to visit the undertaker and the tax collector on the same day.".[65]

A similar argument is based on a distrust of governments to use taxes for the public good. In an article in Washington Examiner, Michael Shindler argued that "inheritance of multigenerational wealth allows people, especially young people, to comfortably pursue callings that, despite their vital importance to human flourishing, are typically uncompensated by the market" and cites Lord Byron, Thomas Jefferson, and Ludwig Wittgenstein as examples of such individuals. Similarly, Shindler also argues that "whereas in Europe museums, theaters, symphony halls, and other cultural institutions are typically government-subsidized, here they gain the bulk of their funding from the generosity of philanthropic foundations founded and sustained by the stewards of multigenerational wealth....Consequently, American culture is less an expression of the whims of bureaucrats and more a manifestation of the will of its citizenry."[68]

Other arguments against an estate tax are based on its economic effects. The Tax Foundation published research suggesting that the estate tax is a strong disincentive to entrepreneurship. Its 1994 study found that a 55% tax rate had roughly the same effect as doubling an entrepreneur's top effective marginal income tax rate. Also, the estate tax was found to impose a large compliance burden on the U.S. economy. Past studies by the same group estimated compliance costs to be roughly equal to the revenue raised – nearly five times more cost per dollar of revenue than the federal income tax – making it one of the nation's most inefficient revenue sources.[69]

Another argument is that tax obligation can overshadow more fundamental decisions about the assets. In certain cases, it is claimed to create an undue burden. For example, pending estate taxes could be a disincentive to invest in a viable business or an incentive to liquidate, downsize, divest from or retire one. This is especially true when an estate's value is about to surpass the exemption amount. Older people may see less value in maintaining a farm or small business than reducing risk and preserving their capital, by shifting resources, liquidating assets, and using tax avoidance techniques such as insurance, gift transfer, trusts and tax-free investments.[70]

Another argument is that the estate tax burdens farmers because agriculture requires more capital assets, such as land and equipment, to generate the same income that other types of businesses generate with fewer assets. Individuals, partnerships and family corporations own 98% of the nation's 2.2 million farms and ranches. The estate tax may force surviving family members to sell land, buildings, or equipment to continue their operation.[71] The National Farmers Union advocated relief for farmers by increasing the exemption per estate to $5 million.[72] Americans Standing for the Simplification of the Estate Tax advocates relief for farmers and small business owners by eliminating death as a taxable event in what the group describes as a down payment on their estate taxes during their earning years.[73] Along these lines, the American Solution for Simplifying the Estate Tax Act, or 'ASSET Act', of 2014 (H.R. 5872) was introduced on December 11, 2014 to the 113th Congress by Rep. Andy Harris.[74]

Another set of arguments against the estate tax is based on its enforcement. The Tax Foundation notes that because the tax can be avoided with careful estate planning, estate taxes are just "penalties imposed on those who neglect to plan ahead or who retain unskilled estate planners".[69] A disparity between tax rates may encourage wealthy people to minimize taxation by moving their wealth outside the United States. As a result, the collected tax will be far less than claimed by proponents and will lower the tax base, opponents argue. However, most countries have inheritance tax at similar or higher rates.[75]

The caption for section 303 of the Internal Revenue Code of 1954, enacted on August 16, 1954, refers to estate taxes, inheritance taxes, legacy taxes and succession taxes imposed because of the death of an individual as "death taxes". That wording remains in the caption of the Internal Revenue Code of 1986, as amended.[76]

On July 1, 1862, the U.S. Congress enacted a "duty or tax" with respect to certain "legacies or distributive shares arising from personal property" passing, either by will or intestacy, from deceased persons.[77] The modern U.S. estate tax was enacted on September 8, 1916 under section 201 of the Revenue Act of 1916. Section 201 used the term "estate tax".[78][79] According to Professor Michael Graetz of Columbia Law School and professor emeritus at Yale Law School, opponents of the estate tax began calling it the "death tax" in the 1940s.[80] The term "death tax" more directly refers back to the original use of "death duties" to address the fact that death itself triggers the tax or the transfer of assets on which the tax is assessed.

While the use of terms like "death duty" had been known earlier, specifically calling estate tax the "death tax" was a move that entered mainstream public discourse in the 1990s, as an attempt to give it a devastating new nickname in a manner similar to a neologism. This happened after a proposal was shelved that would have reduced the threshold from $600,000 to $200,000, after it proved to be more unpopular than expected, and awakened political interest in reducing the tax.[81] For some reason, surveys suggest that opposition to inheritance and estate taxes is even stronger with the poor than with the rich.[82]

Many opponents of the estate tax refer to it as the "death tax" in their public discourse partly because a death must occur before any tax on the deceased's assets can be realized and also because the tax rate is determined by the value of the deceased's persons assets rather than the amount each inheritor receives. Neither the number of inheritors nor the size of each inheritor's portion factors into the calculations for rate of the estate tax.

Proponents of the tax say the term "death tax" is imprecise, and that the term has been used since the nineteenth century to refer to all the death duties applied to transfers at death: estate, inheritance, succession and otherwise.[83]

Chye-Ching Huang and Nathaniel Frentz of the Center on Budget and Policy Priorities assert that the claim that the estate tax is best characterized as a "death tax" is a myth, and that only the richest 0.14% of estates owe the tax.[84]

Political use of "death tax" as a synonym for "estate tax" was encouraged by Jack Faris of the National Federation of Independent Business[85] during the Speakership of Newt Gingrich.

Well-known Republican pollster Frank Luntz wrote that the term "death tax" "kindled voter resentment in a way that 'inheritance tax' and 'estate tax' do not".[86]

In 2016, presidential candidate Donald Trump released a health care plan which used the term "death penalty" in the context of health savings accounts which would pass tax-free to the heirs of an estate.[87]