Do You Need a "Bypass"?

Lisa Nachmias Davis
Davis O'Sullivan & Priest LLC
59 Elm Street, Suite 540
New Haven, CT 06510
Phone:  203-776-4400 / Fax 203-774-1060
(last updated 4/9/24)

     An estate plan for a couple sometimes includes trusts designed to minimize taxes, by "sheltering" assets from estate tax payable when the second person dies.  The plan is that assets of the first spouse to die "bypass" the second spouse and instead, go into a trust.  If your combined assets (house, retirement, savings, etc.) are now (2024) approaching $6-7 million, OR if you own real estate in a high-tax state like Massachusetts, you may need a bypass plan.

     Why?  What's old is new again!  Or may be new.  Estate tax exemption hikes made these plans unnecessary, but these hikes are due to expire in 2026. 

     It's true that the 2024 federal estate tax exemption is $13.16 million  (potentially double that if a federal estate tax return is filed when the first spouse dies and the second doesn't remarry -- this is called "portability").  And even in Connecticut, the exemption is the same as the federal exemption, although with no "portability" to double it.  (Other states may have much lower cutoffs -- $2 M for Massachusetts -- and that will affect you if you own ANY real estate there.)  But the federal law "sunsets" in 2025, bringing back an inflation-adjusted amount from 2010.  In 2026, it seems increasingly likely that the exemptions will be $6-7 million (maybe a bit more due to inflation) at both state and federal levels.   At the federal level, the excess will be taxed at 40% after a deduction for any state taxes; at the state level, 12%.

     So, fast forward to 2026, and keep in mind that if you aren't spending your savings and if they are in the stock market, it's likely they will increase in value.  If a Connecticut couple's COMBINED assets in 2026 are UNDER the federal exemption amount, let's say $6 million, no tax will be due when either dies, period. (Don't get me started on the probate fee, up to 0.5%, max $40,000...)  AND if the surviving spouse remembers to file a federal estate tax return when the first spouse dies, AND ALSO doesn't remarry, there will be no federal tax when the second one dies either.  But suppose they have $8 million and both die and that federal tax return isn't filed. 
If one dies and then the other and the first person leaves everything to the spouse, no tax will be due at the first spouse's death, but will be at the second, because assets that pass to your surviving spouse will be taxed as part of that spouse's estate on that spouse's death. Tax will be due on the excess over $6 -- combined federal and state tax of something just under 52%!  Even if no federal tax is due, a 12% CT tax will be due -- 12% x $8 million minus $6 million = $240,000.  That tax is paid out of the estate or if there is no "estate" (no probate), by the people who get the money: your family. (NO tax is due on amounts you leave to charity!) 

Example:  It's 2026.  Ozzie has $4 million.  Harriet has $4 million of her own.  Ozzie dies leaving his $4 million to Harriet.  Harriet, grief-stricken, dies a year later. She has $8 million -- her $4 M plus what she got from Ozzie.  On her death, the $8 million generates about $240,000 in Connecticut estate tax (roughly 12% x $2 million) PLUS if she did not file the federal estate tax return, about $704,000 in federal estate tax  (40% x $2 million less the CT tax)
One way to show this is a kind of math equation:
OZZIE $4M + HARRIET $4M  =  HARRIET $8M
HARRIET $8M = FAMILY $7,520,000 + TAX $948,000

      This problem could have been solved if Ozzie's estate plan (will and/or trust) included a "bypass trust" AND he had assets in his sole name or the name of his own separate trust, that could be used to fund the bypass trust. His $4 million would have gone into the trust for Harriet so that when she died, the Bypass Trust would have owned $4 million and she, Harriet, would still have owned only $4 million. Trusts aren't people and don't die, so no more tax on the Bypass Trust assets.  Harriet would have had her own $4 million only -- no tax there either.  So if Ozzie and Harriet paid their lawyer $3,500 -$6,000 for this plan, they saved nearly a million in taxes! Pretty good deal  Even if it is only compared to $240,000!!

So here is the solution:
OZZIE $4M + HARRIET $4M  =  BYPASS $4M + HARRIET $4M
BYPASS $4M + HARRIET $4M = FAMILY $8M


        Problems?

 (1) ALL trusts have certain complications, including (and as we lawyers say, but not limited to) having to file special trust tax returns each year, high tax brackets for income that is retained in the trust and all capital gains earned by the trust, plus a 3.8% net investment income tax on top of the high tax if income is retained, having to deal with a trustee OR remember to dot the i's and cross the t's if serving as trustee and beneficiary at the same time, and just the sheer bother of having to understand what the trust document says and means and consult lawyers and accountants. 
CLICK for my article about what it means to be the beneficiary of a Bypass Trust rather than inheriting your spouse's estate outright. Sometimes, it's just not worth it to save taxes.  That said, you could set the thing up and leave it to the surviving spouse to decide whether or not it should actually be carried out, by doing a "disclaimer" plan.  The spouse decides within 9 months of the first spouse's death and if disclaimed, assets are then held in the Bypass Trust (called a Disclaimer Trust).

(2) Whether this makes any sense may depend on your assets! 
As noted -- to "bypass" Harriet, Ozzie's assets have to get into the Bypass Trust when Ozzie dies.  If Ozzie's $4 million consisted of his 401(k), this would have created complications.  The trust would have had to draw down on the 401(k) over 10 years at best, most likely accelerating income tax and as a result, due to compressed tax brackets, resulting a high tax hit -- maybe 40% if the money had to stay in trust.  Since traditional IRAs, 401ks, 403bs etc. are "pre-tax," estate tax can be pocket change compared with the INCOME TAX that is due on every dollar that comes OUT of the IRA, 401k and so forth.  It's usually preferable to leave these assets to the surviving spouse, period.  (IF there are minor children or disabled beneficiaries that can also work, but it is complicated.)

(3) What if Ozzie and Harriet's $8 million consists of appreciated stock in a company that they started with $1 but which seems to double in value every few years?  The stock that would go into Ozzie's Bypass Trust would also "bypass" the so-called "step-up in basis" (ask Google) on Harriet's later death -- that is, any GAIN in value after Ozzie died would be subject to capital gains tax if it went into the Bypass Trust as compared with zero gain if the family inherited it directly from Harriet.  This could also be a problem if Harriet lives for many years after Ozzie's death and doesn't remember to keep diversifying the assets and they build up untaxed gains.  Still -- possibly 20% or so of capital gains tax may not be a big deal compared with the estate tax- it depends.

      What are some Alternatives?  If you don't like the idea of the Bypass Trust, you have alternatives: (1) spend the extra money during lifetime! (2) give it away each year in amounts that don't exceed $18,000 per donor, per donee (2024 number), or qualify for the "med/ed" exclusion, so you don't die with more than the estate tax exemption; (3) leave something to the children when the first spouse dies, or alternatively, the surviving spouse can decide (within 9 months of first spouse's death)  to "disclaim" assets that will then pass to the children directly; (4) give the excess to charity; or (5) if you feel sure your spouse will do the federal estate tax return to take advantage of "portability," don't worry about the Connecticut estate tax -- what's $240,000 or whatever in tax when you are leaving $8 million to your children anyway.  Actually there may be a few other tricks - consult a qualified estate planning attorney!

Note:  When it comes to the Bypass Trust, there may be as many variations as there are lawyers.  Even the name comes in different flavors.  Some lawyers call this type of estate plan an "A/B" plan, which means that the "A" part bypasses the surviving spouse and the "B" goes to a different kind of trust for the surviving spouse, and/or passes outright.  Some call it a "credit shelter" plan.  In some plans, the "marital" share (non-bypassing) goes outright to the spouse and everything else is held in trust.  In community property states, there may be a "Decedent's" trust and a "Survivor's" Trust.  The "Decedent's" community property half will bypass the survivor.  So:  if you see any of these terms you can feel pretty sure it is a "bypass" plan and the resulting trust is a "bypass" trust. 

WARNING -- these trusts do NOT help avoid paying for long-term care expenses and qualifying for Medicaid. I assume that if you have more than $6 million, you can definitely afford to pay some of this for long-term care and/or purchase long-term care insurance and you will have more options if you just keep your money -- but you should know that if your surviving spouse is the beneficiary of a Bypass Trust, the Connecticut Department of Social Services will treat the trust as fully available to meet your spouse's long-term care expenses - -the whole amount will in most cases have to be consumed before the beneficiary can qualify for Title 19.


CAUTION:  EVERYTHING I JUST WROTE HAS EXCEPTIONS AND FINE POINTS AND MAY CHANGE AT THE WHIM OF CONGRESS, THE STATE LEGISLATURE, ETC.  THIS IS A VERY GENERALIZED EXPLANATION. IT IS ABSOLUTELY ESSENTIAL THAT YOU MEET WITH YOUR OWN ATTORNEY AND PROVIDE YOUR ATTORNEY WITH FULL INFORMATION ABOUT WHAT YOU OWN AND THE WAY IT IS TITLED -- AND THAT YOU FOLLOW YOUR ATTORNEY'S INSTRUCTIONS!


DISCLAIMER: THIS INFORMATION IS NOT PROVIDED AS LEGAL ADVICE AND CREATES NO ATTORNEY-CLIENT RELATIONSHIP.
NO ENDORSEMENT IS INTENDED BY ANY REFERENCES HEREIN.
PLEASE CONSULT YOUR OWN LEGAL AND FINANCIAL ADVISORS BEFORE TAKING ANY ACTION

.