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gift tax 2022

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By Nancy Burner, Esq.

Nancy Burner, Esq.

As we enter a new year, it’s important that there is an understanding of the updated estate and gift taxes on both the federal and state level. 

The Tax Cuts and Jobs Act (the “Act”) increased the federal estate tax exclusion amount for decedents dying in years 2018 to 2025. The exclusion amount is for 2022 is $12.06 million. This means that an individual can leave $12.06 million, and a married couple can leave $24.12 million dollars to their heirs or beneficiaries without paying any federal estate tax. This also means that an individual or married couple can gift this same amount during their lifetime and not incur a federal gift tax. The rate for the federal estate and gift tax remains at 40 percent.

There are no 2022 changes to the rules regarding step-up basis at death. That means that when you die, your heirs’ cost basis in the assets you leave them are reset to the value at your date of death. 

The Portability Election, which allows a surviving spouse to use his or her deceased spouse’s unused federal estate and gift tax exemption, is unchanged for 2022. This means a married couple can use the full $24.12 million exemption before any federal estate tax would be owed. To make a portability election, a federal estate tax return must be timely filed by the executor of the deceased spouse’s estate. 

For 2022 the annual gift tax exclusion has increased to $16,000. This means that an individual can give away $16,000 to any person in a calendar year ($32,000 for a married couple) without having to file a federal gift tax return. 

Despite the large Federal Estate Tax exclusion amount, New York State’s estate tax exemption for 2021 is $5.93 million. As of the date of this article, the exact exclusion amount for 2022 has not been released. It is anticipated to be a little over $6 million in 2022. New York State still does not recognize portability.

New York has a three-year lookback on gifts as of January 16, 2019. However, a gift is not includable if it was made by a resident or nonresident and the gift consists of real or tangible property located outside of New York State; while the decedent was a nonresident; before April 1, 2014; between January 1, 2019, and January 15, 2019.

 Most taxpayers will never pay a federal or New York State estate tax. However, there are many reasons to engage in estate planning. Those reasons include long term care planning, tax basis planning and planning to protect your beneficiaries once they inherit the wealth. 

In addition, since New York State has a separate estate tax regime with a significantly lower exclusion than that of the Federal regime it is still critical to do estate tax planning if you and/or your spouse have an estate that is potentially taxable under the New York State law. 

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office. Visit www.burnerlaw.com


LIVE WEBINAR: Burner Law Group, P.C. presents a free webinar titled 2022: The Year of Trusts on Thursday, Jan. 20 at 2:30 p.m. Attorney Britt Burner will discuss the anatomy of trusts, the types of trusts used in Estate and Medicaid planning and how they can benefit you and your loved ones. To RSVP, call 631-941-3434 or email [email protected].