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New York Elder Law & Estate Planning
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Serving New York for Over Three Decades
February 2022

Estate and Gift Taxes for 2022 – A Primer

For 2022, the Internal Revenue Service increased the federal estate and gift tax lifetime exemption to $12.06 million per person ($24.12 million per couple). This means that an individual's estate will not be liable for federal estate taxes if it is valued at or below $12.06 million. Therefore, a couple with assets of $24.12 million or less will not have a federal estate tax imposed on their collective estate provided proper planning is done. Further, a gift tax will not be imposed if lifetime gifts are made within these limits.

This increase means that a married couple can now shield a total of $24.12 million without having to pay any federal estate/gift taxes. The Biden administration had seriously considered reducing the exemption to $3.5 million, but this proposal was not enacted into law. Although the President's proposals did not become law, individuals should engage in planning as soon as possible to maximize gift and estate tax savings. But be aware that the proposals reducing the estate tax exemption may be enacted in the future. And, in any event, the federal estate tax exemption is due to sunset at the end of December 2025, and the exemption will revert back to $5,000,000 with adjustments for inflation.

An individual can use all or part of the gift/estate tax exemption during his/her lifetime. Any portion of the exemption that is left over can then be used by heirs to reduce or even eliminate estate taxes upon death.

After four year of being at $15,000, the exclusion has now been increased to $16,000 per recipient for 2022. This means that an individual can make lifetime gifts of up to $16,000 to an unlimited number of people without having to file a gift tax return. Married couples can give $32,000 per year per recipient. For example, if a married couple has four children and four grandchildren, they may gift $256,000 in calendar year 2022 to these family members without affecting their combined $24.12 million estate/gift tax exemption, thus allowing them to transfer substantial assets gift tax-free.

Many individuals erroneously believe that they can gift only the annual exclusion amount of $16,000 per recipient, however, these annual exclusion gifts can be made over and above the aforementioned $12.06 million federal exemption limit. In other words, annual exclusion gifts of $16,000 or less per recipient per calendar year do not use up any of the lifetime allowances.

When making gifts, it is important to take into consideration appreciation of the gifted assets, which can result in significant capital gains upon the recipient's sale of the gifted assets. A competent estate planning attorney will conduct a comprehensive cost/ benefit analysis of capital gains and estate taxes and will devise an appropriate plan.

Federal tax rules are different from those of New York State. New York State does not currently impose a gift tax, but any gifts made within the three years immediately prior to death will be brought back into the estate (“claw back”). Also, even though New York does not impose a gift tax, remember that any gifts over $16,000 per recipient per year will count toward the allowable federal allowance of $12.06 million. In other words, one would have to gift over that amount in order to incur a gift tax.

As far as estate tax is concerned, New York's estate tax exclusion amount is currently $6,110,000, and is adjusted annually for inflation. It is very important to keep in mind that if an individual dies with an estate that is more than 5% over the New York estate tax exclusion, New York will impose an estate tax on the entire amount of the estate, not just the overage. This is commonly referred to as 'the cliff.'

So, if an individual dies with $6,485,000 or more in assets, the entire $6,485,000 is taxed (not just the $375,000).

It is important to review your assets with an estate planning attorney and, depending on your age and life expectancy, evaluate potential appreciation of those assets during your lifetime, contemplate gifting assets outright or in trust, and consider executing documents that will minimize or eliminate estate taxes upon your death.