New York, NY Death Tax 2020

This article is dealing with the 2020 New York resident death taxation. The death tax is better and more correctly known the estate tax, as the person who died is not paying tax, his heirs are.

On December 22, 2017, the Tax Cuts and Jobs Act implemented substantial cuts to the death tax.^[1] The main change, effective 2018, doubled the lifetime estate exclusion amount, which IRS clarified to be $11,180,000.^[2] In 2020, the inheritance tax exclusion amount will be adjusted for inflation and slightly higher.^[3] The NYS death tax exemption is very different.

This is the new amount helps many people avoid the death tax, which can be as high as 40% on amounts over $11,180,000. Further, married couples can utilize what is known as the “portability” option to effectively double this amount. After the first spouse dies, the estate’s executor would elect portability on Form 4768 to pass any amount up to $11,180.000, inclusive of prior gifts, to the surviving spouse.^[4] Essentially, this tactic excludes nearly $22.4 Million from federal taxation. While this undoubtedly brings incremental wealth to many beneficiaries, New York residents should know that this does help with federal taxes but will not help with the New York inheritance tax.

New York is one of a handful of states that still taxes inheritance. In 2014, Gov. Cuomo led death tax reform in New York. With the idea of eventually matching Federal tax rates, the state legislature fixed death tax rates through 2018 and thought to match the federal rates as of 2019.^[5] Alas, it was not to be. In 2020, the NYS death tax exemption amount is set at $5.85 Million, adjusted for inflation.^[6] Thus, without the New York legislature intervention, there is a large taxation discrepancy between New York death tax rates and Federal death tax rates.

Beyond the amount, New York has two additional rules unfavorable to estates when compared to the Federal code.

First, the ability for surviving spouses to check a box and claim a portability option does not exist for the New York death tax. Hence, there is no “easy” way to automatically double the excludable amount.

Second, and potentially more pejorative than the lack of portability, is what is known as the tax cliff. For example: in 2020, if your estate is $5.85 Million, no taxes are due. Anything higher than 5% above that number, however, and your beneficiaries are paying taxes up to 16% in New York death tax on the entire amount of the estate.^[7]

To limit the liability of paying hundreds of thousands of dollars in the New York death tax upon death, these harsh tax rules necessitate strategic estate planning. To maximize the inheritance for a loved one, a NY resident with a nest egg above $5.85 million death tax exemption amount must act prior to death.

The first option is to simply move. Sunny Florida with no personal or inheritance tax is always a popular retirement destination.

If moving is not an option, and the amount only slightly exceeds the threshold, an accountant could possibly move you from the edge of the cliff by utilizing such deductions as funeral and administrative expenses and marital and charitable contributions.^[8]

Yet, an estate’s value is hopefully increasing and is unpredictable. Relying on tax deductions ex-post-facto is not prudent.

Instead, a competent lawyer will utilize various New York death tax saving strategies such as credit shelter trusts.^[9] Placing assets in such trust negates the harsh non-portability rule in New York. A credit shelter trust would allow both you and your spouse to keep the full $5.85 million or so exemption, for a combined exemption of $11.7 million. For many couples, this would be enough to ensure that the entire inheritance is distributed to the intended beneficiaries, and not to the NY State coffers.

Call the Law Offices of Albert Goodwin at (212) 233-1233, New York estate, guardianship, wills, trust, Medicaid and probate lawyer, and make an appointment to discuss the death tax.

[1] HR 1, 115th Cong (2017).

[2] 26 U.S.C. § 2010 (2018); Rev. Proc. 2018-18, 2018-10 I.R.B. 397 (2018).

[3] The Tax Cuts and Jobs Act also changed how inflation gets adjusted. It is now calculated based on the Chained Consumer Price Index. See HR 1, 115th Cong (2017).

[4] Frequently Asked Questions on Death taxes: How do I Elect Portability of the Deceased Spousal Unused Exclusion (DSUE) Amount to Benefit the Surviving Spouse?,IRS

[5] Erik Engquist, Could Congress, Trump Wipe Out New York’s Death tax?, CrainsN.Y.

[6] NY TAX § 952 (2018). Now, even inflation calculations will diverge for New York death tax and Federal tax calculations. See supra, note 3.

[7] NY TAX § 952(c). The code gives partial tax credits when the exclusion amount is exceeded by up to 5%.

[8] Id.§ 955.

[9] Depending on an individual’s situation, some other trusts may be more appropriate for New York death tax savings, such as a disclaimer or a QTIP-election trust.

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