Estate Planning Strategies to Consider as Election Nears

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In an election year, estate planning can easily become a source of undue anxiety since a change of administration and control of Congress could lead to changes in the tax code.

The proposals from both Democrats and Republicans have led to concerned clients reaching out to us to ask if it's time to take action now. While proposed legislation does not warrant wholesale changes to estate plans, looming legislative changes, which we will discuss, may merit action.

Any proposal will live or die on support from legislators. Frankly, we don’t feel it is likely a divided Congress will enact major changes before the election. Neither party wants to hand the other a legislative victory, especially in a presidential election year. The top priority for most lawmakers right now is to focus on their own election campaigns, address national crises and avoid government shutdowns. Throughout our careers, we have never seen this environment produce the bipartisan cooperation necessary to enact major changes to tax laws.

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Sunset of tax exemptions coming up fast

However, we still think it pays to consider how the candidates’ proposals would influence income and estate taxation. The current federal estate and gift tax lifetime exemption of $13.61 million is set to sunset on December 31, 2025, and the exemption will revert to $5 million adjusted for inflation from 2010, or likely around $7 million, something President Joe Biden supports, though he has decided not to pursue the Democratic nomination. Additionally, there are talks of increasing the top marginal income tax rate and taxing capital gains as ordinary income for high earners.

On the other side of the aisle, former President Donald Trump’s proposals include extending the gift/estate tax exemption and increasing income tax cuts. These proposals create a confusing tableau for individuals trying to plan their estates effectively.

Although post-election scenarios vary widely, the 2026 sunset of the current tax exemptions is on the horizon, and individuals should consider utilizing their available gift tax and estate tax exemptions now in case they are reduced. If clients are willing and able to utilize the current gift exemptions, now is the time. Do not wait until December 2025, as an eleventh-hour decision will not allow for proper consideration and planning and may not be enough time to get it done.

The gift exemption could be used by giving away cash, securities or even a home. The gift could be made to a trust for children so they don’t get immediate access or control and to protect the assets from third parties. One should consult a lawyer for advice about the trust terms and flexibility, which can vary widely, as well as the trustees and in which state to establish the trust.

Innovative insurance options in the works

In this environment of uncertainty, the insurance market has responded with innovative solutions to address the potential 2025 sunset of current estate tax provisions. Notably, a proposed new product would enable an individual to buy $5 million in survivorship life insurance with an option to double this amount without additional medical screening if the tax exemptions revert to lower amounts in 2026.

The reality is that even if the pendulum swings in one direction, it will eventually swing back. By leveraging strategic insurance products and keeping informed about tax law proposals, individuals can ensure that their estate planning strategies are robust and adaptable. As always, consulting with experienced professionals who can provide personalized advice based on the latest developments and individual circumstances is crucial.

Disclaimer

This article was written by and presents the views of our contributing adviser, not the Kiplinger editorial staff. You can check adviser records with the SEC or with FINRA.

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David A. Handler is a partner in the Trusts and Estates Practice Group of Kirkland & Ellis LLP. He concentrates his practice on trust and estate planning and administration, representing owners of closely held businesses, family offices, principals of private equity and venture capital funds, individuals and families of significant wealth, and establishing and administering private foundations and other charitable organizations.

With contributions from