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The use of a spousal limited access trust is a key estate planning strategy for some clients. Using a SLAT preserves the federal exemption before it is reduced. A SLAT is an irrevocable trust created by one spouse for the benefit of the other during their lifetime. The purpose of a SLAT is to freeze the values of the transferred assets at their current value and to exclude any appreciation from the estate of either spouse.

Married clients looking to engage in proactive estate tax planning should be reviewing the viability of this type of plan for their situation. It can be especially useful in long-term marriages where clients are looking to balance flexibility with maximum wealth transfer for future generations.

Suppose the couple has a taxable estate in excess of $15 million and fears the federal exemption will be reduced to $6.0 million (indexed for inflation in 2026). In order to utilize the full $11.7 million, one spouse could put $11.7 million in a SLAT for the other spouse, thereby utilizing the full federal exemption before it is reduced. The beneficiary spouse would have access to the trust and yet it would not be taxable in that spouse’s estate. The beneficiary spouse might even have a limited power of appointment, allowing the grantor spouse to be a beneficiary if the grantor spouse is the survivor.

With the prospect of the $11.7 million per person federal exemption being reduced substantially at some point in the future, a SLAT allows the client to utilize the full exemption. The next question becomes where to place the assets used to fund the SLAT.

Recognizing that most gifting strategies require the taxpayer to give away assets with no strings attached, many couples with significant assets are still reluctant to give away assets for fear they someday may need the gifted assets. An ideal solution would be the purchase of a traditional cash value life insurance policy, or if the annual premium is over $500,000, a private placement life insurance policy would be more appropriate, (further explained below). Both policies represent completed gifts, which means that trust assets are removed from the couple’s gross estate, along with a tax-free leveraged death benefit, and a growing tax deferred accumulation fund. This gives a beneficiary’s spouse the ability to make a completed gift, yet access the policy’s cash value on a tax-favored basis if the assets are ever needed in the future.

For planning purposes, a couple can use a single-life or a second-to-die policy. In either case the policy should be owned by a SLAT if it’s single life, or an irrevocable life insurance trust if it’s a second-to-die policy. This will avoid any incidence of ownership by the grantor or grantors and allow the ILIT or the SLAT to receive the policy’s death benefit free of income and estate taxes, while providing creditor protection and management by the trustee.

Clients who lost a spouse after 2012 but did not file a timely estate tax return on Form 706 should be seeking advice to determine if they should take advantage of the deceased spouse’s unused federal exemption.

For example, assume a surviving spouse has a $10 million taxable estate. Perhaps the surviving spouse should file an estate tax return for the deceased spouse and then use the deceased spouse’s unused exemption, thus eliminating a tax on the estate of the second to die. The portability election must be made on a timely filed estate tax return. However, even if the estate tax return was not filed, there may be some exceptions that will allow a late filing of the return to elect portability. Clients can check with their estate attorney.

The best way to fund these future estate tax liabilities is with a guaranteed universal second-to-die life insurance policy to the youngest spouses. Doing so will result in the least expensive annual premium outlay, as there is no need to build up any cash value since we’re only looking for the maximum death benefit protection. While a second-to-die policy makes sense most of the time, it’s always important to compare the cost to only insure the younger and/or healthier person to determine if there’s enough of a premium difference to justify the risk of only insuring one person.