BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    SB 1265


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          Date of Hearing:  June 28, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SB  
          1265 (Moorlach) - As Introduced February 18, 2016


                                  PROPOSED CONSENT

          SENATE VOTE:  38-0


          SUBJECT:  MARITAL DEDUCTION TRUSTS


          KEY ISSUE:  IN ORDER TO BETTER PROTECT DECEDENTS AND THEIR  
          SURVIVING FAMILIES FROM POTENTIAL TAX LIABILITY ASSOCIATED WITH  
          INARTFUL DRAFTING OF ESTATE PLANS, SHOULD THE MARITAL DEDUCTION  
          TRUSTS SAVING STATUTE BE UPDATED to be CONSISTENT WITH FEDERAL  
          LAW?


                                      SYNOPSIS


          This non-controversial and technical bill updates provisions  
          relating to marital deduction trusts savings statute by updating  
          its references to federal law and deleting outdated provisions  
          limiting a qualified terminable interest property trust.  This  
          bill is sponsored by the Executive Committee of the Trust and  
          Estates Section of the State Bar of California (TEXCOM) and has  
          no opposition on file. 









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          SUMMARY:  Updates the marital deduction trusts savings statute  
          to reflect definitions used under federal law.  Specifically,  
          this bill:  


          1)Provides that the term income shall be construed in a manner  
            consistent with subdivision (b) of Section 2056 and  
            subdivision (f) of Section 2523 of the Internal Revenue Code,  
            and shall include a unitrust payment or other allocation of  
            income determined pursuant to a reasonable apportionment of  
            total investment return that meets the requirements of Section  
            643 of the Internal Revenue Code and the regulations adopted  
            pursuant to that statute.


          2)Deletes provisions relating to qualified terminable interest  
            property that specify that on termination of the interest of  
            the transferor's spouse in the trust all of the remaining  
            accrued or undistributed income shall pass to the estate of  
            the transferor's spouse, unless the instrument provides a  
            different disposition that qualifies for the marital  
            deduction.


          EXISTING LAW:   


          1)Defines a marital deduction to mean the federal estate tax  
            deduction allowed for transfers under Section 2056 of the  
            Internal Revenue Code or the federal gift deduction allowed  
            for transfers under Section 2523 of the Internal Revenue Code.  
             (Probate Code Section 21520.  Unless otherwise stated, all  
            further statutory references are to the Probate Code.)

          2)Defines a marital deduction gift as a transfer of property  
            that is intended to qualify for the unlimited federal estate  
            tax deduction or the federal gift tax deduction, as provided.   
            (Ibid.)








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          3)Provides that if a marital deduction is made in trust, the  
            following must apply:


             a)   The transferor's spouse is the only beneficiary of  
               income or principal of the marital deduction property as  
               long as the spouse is alive.  Further provides that nothing  
               in this requirement precludes exercise by the transferor's  
               spouse of a power of appointment included in a trust that  
               qualifies as a general power of appointment marital  
               deduction trust.


             b)   The transferor's spouse is entitled to all of the income  
               of the marital deduction property not less frequently than  
               annually, as long as the spouse is alive except as  
               otherwise provided.


             c)   The transferor's spouse has the right to require that  
               the trustee make unproductive marital deduction productive  
               or to convert it into productive property within a  
               reasonable time.  (Section 21524.)


          4)Requires a trustee to administer the trust according to the  
            trust or as provided by law unless the trust provides  
            otherwise.  (Section 16000.)
          5)Requires the trustee to administer the trust with reasonable  
            care, skill, and caution under the circumstances then  
            prevailing that a prudent person acting in a like capacity  
            would use in the conduct of an enterprise as provided.   
            (Section 16040.)

          6)Provides that a trustee, in making and implementing investment  
            decisions, has a duty to diversify the investments of the  
            trust unless under the circumstances it is prudent not to do  
            so.  (Section 16048.)








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          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  When it comes to estate planning, federal tax law has  
          a significant impact in how a decedent may transfer his or her  
          property.  A decedent seeking to minimize estate taxes on his or  
          her gross estate upon death might consult an estate planner to  
          maximize appropriate exclusions, deductions, and other  
          calculations.  In the other words: the lower the taxable estate,  
          the lower the estate tax.  Although California does not have an  
          estate tax, federal law imposes an estate tax if a decedent's  
          gross estate is valued at more than the established filing  
          threshold for the year of the decedent's death.  The filing  
          threshold for 2016 is $5,450,000.


          The federal marital deduction can be used to shield a decedent's  
          estate from tax liability. Commonly, a decedent who is married  
          can reduce his or her gross estate by relying upon the marital  
          deduction under federal law.  The marital deduction, which is  
          currently unlimited, allows a decedent to transfer all of his or  
          her property to a surviving spouse without being immediately  
          subject to wealth transfer taxes; generally, the estate tax is  
          deferred until the death of the surviving spouse if any tax is  
          applied at all.  The policy reason behind this deduction is  
          "based on the idea that transfers between spouses should not be  
          subject to tax because spouses are considered one economic  
          unit."  (See Dukeminier & Sitkoff, Wills, Trusts, and Estates  
          Trust (9th ed. 2013) p. 959.) 


          Depending on the intent of the decedent, different trusts may be  
          created.  Since California is a community property state, joint  
          trusts are common.  According the sponsor, it is also common for  
          a joint trust to have various subtrusts to help manage the  
          assets upon the death of one of the spouses.  To maximize the  
          federal marital deduction benefit described above, a joint trust  








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          may include a marital deduction trust as a subtrust.   
          Practically speaking, upon death of the decedent, the decedent's  
          property in the joint trust is divided, and the marital  
          deduction gift flows to a marital deduction trust,  
          where-depending on the type of marital deduction trust-income  
          and/or principal may be distributed to support the surviving  
          spouse during his or her life.  One of the most common marital  
          deduction trusts is a qualified terminable interest property  
          trust (QTIP).  Under a QTIP trust, income is paid to the  
          surviving spouse for life and any remainder is directed to the  
          other beneficiaries. 


          To protect decedents from problems arising out of inartful  
          estate drafting, California has enacted a backstop to federal  
          law for marital deduction trusts.  Generally, the federal  
          Internal Revenue Code establishes the tax rules on transferring  
          property between spouses during life and at death.  (See 26  
          U.S.C. Sections 2056, 2523.)  Accordingly, estate planners will  
          look to federal law to ensure that estate plans are correctly  
          drafted to help their clients.  However, since the risk of tax  
          liability caused by potential inartful drafting is significant,  
          California has enacted a statutory backstop that mirrors federal  
          law aimed at guarding decedents, surviving spouses, and their  
          families from significant tax liabilities.  Consequently,  
          Probate Code Section 21524 establishes default provisions for  
          marital deduction gifts made in trust.  However, this savings  
          clause becomes ineffective if it is inconsistent with federal  
          law.  


          In support of the bill, the author writes:


            Probate Code Section 21524 (marital deduction trust savings  
            statute) was enacted as a statutory backstop to marital  
            deduction trusts drafted under California law.  That statute  
            grafts the federal regulatory requirements onto marital  
            deduction trusts that may not otherwise qualify due to  








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            unartful drafting.  The purpose of the statute is to rescue  
            possibly defective marital deduction trusts and ensure their  
            qualification for the federal estate tax marital deduction,  
            and, thereby, reduce or eliminate the estate tax on a  
            decedent's estate.  However, this backstop is only effective  
            if the marital deduction trust savings statute mirrors the  
            requirements under federal law.


            Federal law regarding marital deduction gifts has changed in  
            the nearly 25 years since the enactment of the marital  
            deduction trust savings statute, without any substantive  
            change to that statute.  However, two important changes have  
            been made to federal tax regulations in the interim: (1) a  
            revised definition of income for a qualifying marital  
            deduction trust that reflects modern portfolio theory and  
            investment approaches; and (2) evolving case law and  
            government announcements regarding income of a marital  
            deduction trust that is accrued, but undistributed, prior to  
            the death of the surviving spouse. 


          Summary of this bill:  Essentially, this bill adopts the  
          definition of income as it is defined under federal law, and  
          also defines it to include income from a unitrust payment or  
          other allocation of income determined to be a reasonable  
          apportionment of total investment return under the Internal  
          Revenue Code.  This bill also deletes an unnecessary provision  
          of law relating to qualified terminable interest property that  
          has been recognized under common law.


          This bill adopts the definition of income to include income from  
          a unitrust payment.  A unitrust is a type of trust that  
          distributes a fixed amount or percentage of the trust property  
          to the income beneficiary.  Because a unitrust does not  
          distinguish between income and principle, it provides more  
          flexibility to a trustee to diversify and invest for a total  
          return.  In addition to adopting the definition of income  








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          adopted under the Internal Revenue Code, this bill reasonable  
          includes a unitrust payment or other allocation of income  
          determined to be a reasonable apportionment of total investment  
          return that meets the requirements of Section 643 of the  
          Internal Revenue Code as income.  Given that this definition is  
          already recognized under federal law, this adoption would  
          improve the state's marital deduction savings clause. 


          This bill seeks to conform the current marital deduction savings  
          statute to existing law by deleting outdated provisions.   
          Probate Code Section 21524 (d) provides that in the case of a  
          QTIP trust, upon the termination of the interest of the  
          surviving spouse, all remaining accrued or undistributed income  
          shall pass to the estate of the surviving spouse unless the  
          instrument provides a different disposition that qualifies for  
          the marital deduction.  According to TEXCOM, when the statute  
          was enacted in 1990, federal tax law was unsettled as to whether  
          undistributed income that had accrued prior to the surviving  
          spouse's death had to flow to the surviving spouse's estate in  
          order for a trust to qualify for the marital deduction.  TEXCOM  
          states that it is now well-settled that a trust qualifies for  
          the marital deduction without mandating distribution of that  
          income.  (See Estate of Howard v. Commissioner (9th Cir. 1990)  
          910 F.2d 633.)  Accordingly, this bill justifiably deletes the  
          outdated reference and removes the unnecessary limitations on a  
          QTIP trust.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Executive Committee of the Trusts and Estates Section of the  
          State Bar of California (sponsor)








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          Opposition




          None on file


          Analysis Prepared by:Eric Dang / JUD. / (916)  
          319-2334