Linda Markowitz and Kathy Rosenthal hosted the past presidents committee of the Westchester Women’s Bar Association on August 10, 2022. A good time was had by all.
Sherry Bishko and Linda Markowitz attended the Family Law Section of the New York State Bar Association Conference in Newport, Rhode Island from July 7th to July 10th! The Conference was fabulous and brought together matrimonial and family law practitioners from all over the state. It was wonderful to be in-person and see colleagues and gain valuable information from top-notch presenters.
On June 8, 2022, Rosenthal & Markowitz, LLP’s very own Sherry A. Bishko, Esq. was sworn in as Vice President of the Westchester Women’s Bar Association (WWBA) at the WWBA’s annual dinner and installation of officers at the Mamaroneck Beach and Yacht Club in Mamaroneck, New York! Sherry is also co-chair of the WWBA Mentorship Committee which pairs law school students and new lawyers with mentors in the Westchester County legal community. Rosenthal & Markowitz, LLP is a long-time supporter of the WWBA and remains committed to further the mission of WWBA which is promoting justice for all, regardless of sex; to advance the social, economic and legal status of women through the law.
“Sherry A. Bishko, Esq. Co-Chair of the Westchester Women’s Bar Association’s (WWBA) Mentorship Program co-developed and attended a Public Sector Employment Night at the Elisabeth Haub School of Law at Pace University on Thursday evening, April 7, 2022. The panel discussed public sector employment opportunities for the law students and was a rousing success!”
The following is a general discussion about the current law of estate taxes. It is meant to supplement a conversation with an attorney and should not be used for specific estate planning without consulting an estate and/or tax planner.
Your “Estate” Defined:
The size of your estate. An estate consists of all assets you own when you die – whether the asset passes under your Will or passes directly to a surviving named beneficiary or passes to a surviving joint owner. Your estate includes, in some cases, assets which you gave away during your lifetime if you retain some sort of enjoyment and/or ownership interests. And your estate might also include prior taxable gifts.
The Federal Estate Tax Exclusion.1
The good news is that estate tax is not computed on the entire value of a person’s estate. When computing the estate tax, every taxpayer’s estate is entitled to exclude a certain amount – called a federal exclusion – which reduces the size of decedent’s taxable estate. Assuming that a person has not made any taxable gifts during his or her lifetime which would reduce the exclusion amount, then a decedent’s estate would be eligible for the entire federal exclusion amount.
The exclusion amount is $12,060,000 for decedents who die in 2022. Note however, that for decedents dying on or after January 1, 2026, the exclusion reverts to $5,000,000 (indexed for inflation) unless Congress acts to extend the exclusion amount or reduce the exclusion amount. Taxable estates that exceed the exclusion amount will have the excess taxed at a flat 40% rate.
If a married couple is planning, the survivor of the married couple may be able to use his/her own exclusion amount plus any unused portion of the first-dier’s exclusion amount. This mechanism to carry over the first-dier’s unused exclusion amount is called “portability”. If both spouses die between 2022 and 2025, they could have a combined exclusion amount of $24,120,000. To elect portability, it is necessary to file an estate tax return in the first-dier’s estate. Again, even if no tax is due, the return must be filed.
The New York State Estate Tax Exclusion.2
The exclusion amount is $6,020,000 for decedents who die in 2022. If the decedent’s taxable estate is below the exclusion amount, then there is no NYS estate tax. NYS does not recognize portability to recapture the unused exclusion amount of the first spouse to die. When computing a decedent’s taxable estate, NYS does include some prior taxable gifts, but NYS does not include real or tangible property located outside of NYS. If the taxable estate is below the exclusion amount, then there is no NYS estate tax. NYS has added a “phase out” amount of 105%. If the taxable estate is between the exclusion amount and the phase out amount (referred to by some as a “black hole”), then the estate tax could be higher than the amount by which the estate is larger than the exclusion amount. I realize this makes no sense, but it is the law. There are however some ways to reduce the tax impact if a taxable estate falls within the black hole, and we can discuss them if appropriate for you.
If the taxable estate is equal to or exceeds the 105% of the exclusion amount, then the entire taxable estate is taxed (starting at dollar one). The maximum rate is 16%.
A gift is a transfer during lifetime for no consideration. The giver of a gift is called a donor. The recipient of a gift is called a donee. The annual gift tax exclusion amount increased to $16,000 starting in 2022 up from $15,000 per donor per donee per year. A person can make an unlimited number of gifts per year to anyone (friends, relatives, strangers). A person can make larger gifts too, but gifts in excess of the federal exclusion amount require the filing of IRS form 709 and will reduce the lifetime federal exclusion amount by the excess.
Some gifts do not have a maximum: gifts for tuition and gifts for certain medical and medical-related expenses. Gifts for tuition must be made directly to the educational institution. Gifts for medical expenses must be made directly to the medical provider. Medical related gifts include paying for someone else’s health insurance premiums and long-term care insurance premiums and these gifts must be made directly to the insurance providers. To compute the federal estate tax, the IRS adds back in all prior taxable gifts3 made in or after 1976.
NYS does not have a separate gift tax, but NYS adds back in some prior taxable gifts for purposes of computing the NYS estate tax. NYS adds back in prior taxable gifts made within 3 years of decedent’s date of death, but will not add back gifts made prior to April 1, 2019, or gifts made on or after January 1, 2026 (unless the law changes again).
Even if the prior taxable gift is added back in to compute estate tax, gifting might still have beneficial income and estate tax effects.
The Marital Deduction.
In addition to the exclusion amounts, neither the IRS nor NYS impose any gift or estate tax consequence when married couples pass property between them during their lifetimes and at the death of the first spouse provided the assets pass to the surviving spouse (called the unlimited marital deduction).
The Charitable Deduction.
In addition to the exclusion amount and the marital deduction, both the IRS and NYS permit each decedent’s estate to take an estate tax charitable deduction which reduces an estate dollar-for-dollar to the extent of the decedent’s bequests to IRC-approved charities.
Step-Up in Basis Rules.
Unrelated to the exclusions and deductions, but also important for estate and income tax planning, is an asset’s original value – basically, its cost basis.
The value of decedent’s property is stepped-up to its value on the date of decedent’s death. This is called a step-up in basis. The date-of-death value becomes the new cost basis for the person inheriting the property. Basis will have an impact on the amount of gains tax (income tax) due when the property is sold.
The donee of the gift treats the gifted property at its cost basis when determining the amount of gain or loss if the donee sells the gifted property.
The inheritor of property treats the inherited property at its stepped-up basis when determining the amount of gain or loss if the inheritor sells the inherited property.
Note that property which is gifted away by decedent during his or her lifetime does not get a step up to the date-of-gift value. It is possible though for decedent to make a gift during his lifetime and retain some sort of interest for his or her lifetime (as defined by law) such as a life estate. If the donor retained (the correct) interest, then the value of the property is included in decedent’s estate. Yes, this increases the value of decedent’s estate, and an estate tax might be owing, but it is possible that no estate tax will be owing or that the estate tax might be lower than the income tax which would be imposed. It is always necessary to weigh the impact of estate tax vs income tax when contemplating gifting.
Telling your spouse you want a divorce is only the beginning. The next steps will depend on the reaction you get. Do the two of you want to settle things amicably? Aside from not wanting to be married anymore, are you able to work together in the best interests of your children?
If there are any domestic abuse issues, or you expect the process to be contentious, you will likely need to pursue traditional litigation. In other cases, Mediation or the Collaborative Divorce process may be the best approach.
Maintain Financial Status Quo and Gather Documents
You should both try to keep as calm and civil as possible. Try not to fight. Do not close or deplete any joint bank accounts. Instead, begin gathering all the information you can. You will need:
- Documents of all bank accounts and credit cards. Your goal is to obtain statements from the last five years.
- Tax returns.
- Real estate deeds. How property is titled is relevant to property division.
- List of property you believe is your own separate property.
- List of all the personal property and real estate you accumulated together during your marriage.
There are situations where one party has access only to a savings account. You might not have a checking account or credit card. You may not have access to any funds and worry how you will survive. Even then, before you access your one source of available funds, you need to consult with your attorney for advice on what to do next.
How to Tell the Children You are Getting a Divorce
If possible, as parents you should be together when you tell the children about the divorce. You need to reassure the children that they did nothing to cause the divorce. The divorce is strictly between their parents and that you will both still love them and take care of them.
This is a good time to consult with a family therapist to help the children through the process and help you know how to proceed with the divorce in ways that are in the best interests of the children.
Contact Family Law Attorneys at Rosenthal & Markowitz, LLP
For answers to your questions about the divorce process, whether through traditional litigation, mediation, or collaboration, contact our family law attorneys at Rosenthal & Markowitz, LLP. You can reach us online or by calling 914.347.1292.
Choosing a divorce attorney is almost like entering a long-term relationship. You need someone who is qualified and with whom you are also compatible. There are some questions to ask and ways to evaluate whether an attorney is the right divorce attorney for you.
How to Hire Your Divorce Attorney
Friends or relatives are often eager to recommend attorneys to you. This is helpful, but you want to be sure that the attorney is knowledgeable and experienced in family law issues. An attorney who obtained a great personal injury settlement for your brother’s neighbor’s uncle’s nephew may not be the right one to pursue your divorce.
It is a good idea to narrow down your search to about three attorneys. You will want to interview them all. You will be looking for someone:
- Whose primary practice area is family law.
- Who is trained in Mediation and/or the Collaborative Divorce process?
- Find out if the attorney has taken the requisite courses and has the requisite credentials.
- Someone who shares your philosophy. If you want to have a “nuclear war” and “win” at all costs, you will choose a different attorney than one who focuses on amicable settlements.
- Ask what will happen if your case is not right for Mediation or Collaboration. Will the attorney pursue traditional litigation?
- Determine the best way to communicate with the attorney. Phone calls? Email? Text messages?
Look at the attorney’s website. That will generally tell you the attorney’s practice areas and whether they are passionate about Mediation and Collaborative Divorce.
You will have a working relationship with this attorney, possibly for a long time. Although it is a professional relationship, at times it will feel personal. You want to feel a rapport. You need to feel comfortable with the difficult but necessary conversations you need to have about your family.
Contact Family Law Attorneys at Rosenthal & Markowitz, LLP
For answers to your questions about the divorce process, whether through Litigation, Mediation, or Collaboration, contact our family law attorneys at Rosenthal & Markowitz, LLP. We want to be sure you are comfortable with how we approach your divorce. You can reach us online or by calling 914.347.1292 to schedule a consultation.
No matter how you handle it, divorce is a traumatic experience for your children. But if you put your children’s needs above your own and work together with your spouse to focus on what is in the best interest of your children, you can ease their transition in ways that will have a positive influence on them that will follow them for the rest of their lives.
Where to Start
The first thing for you to do is settle the custody issue. From there, other issues can be resolved, like child support.
Focus on the needs of the children and answer their questions. Children want to know:
- Where will we live?
- Will we have to move?
- Will we need to change schools?
- What about extra-curricular activities?
- Will we lose our friends?
- Will we still see our other parent?
You may not be able to answer all these questions, but you can tell them it’s not their fault and that you both will continue to care for them. Consider that you will be co-parenting these children for the rest of their lives. Their needs will change as they grow, but you and their other parent will always need to work together as you both remain involved in their lives.
We tell our clients, “You are parents of these children, not until the end of the divorce, but for the rest of your life. God willing, you will be grandparents together. You should be able to get along. For the sake of your children, work toward a good relationship.” That is what it means to put your children first.
Mediation and Collaborative Divorce are Child Centered
Mediation and Collaborative Divorce are divorce processes that help to put the children first. One of the benefits can be to bring in a child-parent coordinator to help you learn how to communicate with your co-parent in positive ways. You learn co-parenting as an evolving process as you learn to work together in the best interest of your small children and as they grow through middle-school, high-school, college, and become parents themselves.
Parenting is a long journey. Your children will need you even when they are adults. It is important for you to build a relationship with your co-parent that always focuses on the best interests of the children, no matter how old they are.
Contact Family Law Attorneys at Rosenthal & Markowitz, LLP
For answers to your questions about how to have a child-centered divorce, or questions about the divorce process, contact our family law attorneys at Rosenthal & Markowitz, LLP. You can reach us online or by calling 914.347.1292.