Insight on Estate Planning

The AP&S Trusts & Estates Blog

Beware of the Generation-Skipping Transfer Tax

Thanks to recent tax law changes, most families can avoid liability for federal estate and gift taxes. However, there’s a lesser-known tax whammy that can hit wealthy individuals without warning: the generation-skipping transfer (GST) tax. As its name implies, the GST tax generally applies to transfers that “skip” a generation.

Nevertheless, with astute estate tax planning, including the use of a generous lifetime gift tax exemption, you may be able to sidestep any dire consequences under the GST tax, or at the least minimize its impact.

History of the GST tax

The genesis of the GST tax goes back to the 20th century. Normally, federal estate tax would be triggered after the owner of sizable assets passed away. Instead of leaving assets to their children, however, wealthy individuals often bypassed the next generation and bequeathed or gifted the property to their grandchildren, who were expected to end up with the bulk of the wealth anyway. This effectively eliminated one tax bite at the apple for Uncle Sam.

Accordingly, Congress enacted legislation to close this “tax loophole” in the form of the GST tax. Introduced in 1976, the GST tax applies to transfers to related individuals more than one generation away — such as grandchildren or great-grandchildren — and unrelated individuals more than 37½ years younger. All these designated beneficiaries are referred to as “skip persons.”

Furthermore, taxpayers can’t sidestep this potential tax pitfall simply by transferring assets to a trust, with descendants named as ultimate beneficiaries. For these purposes, all of the trust beneficiaries are treated as skip persons and even the trust can be a skip person in certain circumstances.

Be aware that the tax law provides a special exception concerning grandchildren whose parents have predeceased them. In this event, the grandchildren are effectively moved up the line in the place of their parents, so the transfers no longer are technically skipping a generation. But such transfers are still subject to regular federal estate tax.

Key components

Many of the rules relating to the GST tax mirror the rules applying to federal estate tax. For example, GST tax rates are currently the same as they are for regular estate tax liability. Under the last tax rate change, which went into effect in 2013, the top tax rate increased from 35% to 40%, where it remains today.

The GST tax exemption amount, indexed for inflation, mirrors the federal gift and estate tax exemption amount. The exemption amount has jumped dramatically since 2000, when it was $675,000. Under the latest legislation affecting these rules, the Tax Cuts and Jobs Act, the GST tax exemption was doubled along with the regular federal estate tax exemption, from $5 million to $10 million.

As previously mentioned, the GST tax exemption is indexed for inflation. The amount for 2020 is $11.58 million. In other words, a married couple can effectively use a combined exemption of $23.16 million to shield assets from the GST tax.

Also, be mindful that you can benefit from another GST tax exemption for lifetime transfers that is aligned with the annual gift tax exclusion. Just like the annual gift tax exclusion, you can gift up to $15,000 per person, including a grandchild or other descendant, each year without triggering any GST tax liability. This exclusion is also indexed for inflation, but it remains the same in 2020 as it was in 2019.

Be aware that gifts made to skip persons directly or through a trust are referred to as “direct skips.” If any GST tax is paid rather than applying the lifetime exemption, the direct skip is turned into an “indirect skip.”

Turn to the professionals

Clearly, the GST tax rules are complex, and only the highlights have been discussed. In addition, you may face state tax complications, since many jurisdictions have their own version of a GST tax. The bottom line is to seek the assistance of your estate planning advisor.

 Sidebar: GST tax strategies in action

If you find that you have generation-skipping transfer (GST) tax liability, there are steps you can take to minimize or eliminate the tax bite:

  1. Maximize the use of the GST tax exemption. Even though lifetime transfers reduce the available tax shelter, the current $11.58 million exemption ($23.16 million for a married couple) should provide plenty of flexibility.
  2. Use your annual exclusion. This can shelter from tax gifts of up to $15,000, above and beyond the lifetime exemption. Use this before tapping into your lifetime gift tax exemption. Keep in mind that, subject to certain restrictions, payments for tuition and medical expenses paid directly to the school or medical provider aren’t considered gifts and, thus, wouldn’t be subject to the GST tax.
  3. Take advantage of the ability to use trusts when appropriate. Coordinate these strategies as part of your estate plan.

About The Authors

Joseph R. Marion, III

An experienced estate planning attorney, Joseph is a frequent lecturer for the Boston Bar Association and the Rhode Island Bar Association… Read More

David T. Riedel

An author and frequent lecturer on estate planning, administration and taxes, David provides responsive, sympathetic and personable counsel to his varied… Read More

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