You must admit, nobody has as many uplifting titles for their blog posts as I do. I have previously had such cheery titles as “Stress Testing Your Death” and “Is it Morbid to Plan for an Inheritance”. So today, in keeping with my "Morbid Mark" theme, I will discuss the tax implications that can occur when one spouse passes away, and does not will all of their assets to their surviving spouse.
Deemed Disposition Upon Death
Upon death, you are deemed to have disposed of your capital and non-depreciable property (typically your principal residence is tax-free) for proceeds equal to the fair market value (“FMV”) of the assets immediately before death. If the FMV of any property is greater than the original cost of that property, your executor must report a capital gain on your income tax return for the year of death (known as a terminal return).
For example, if John passed away on September 1, 2013 and he owned shares of Bell Canada worth $40 on September 1st, that he had purchased for $28 several years ago, his estate must report a deemed capital gain of $12 per share on his terminal return. The same would hold true for a rental property, which may also have additional potential issues, such as the recapture of capital cost allowance (depreciation).
Automatic Spousal Rollover
There is an exception to the deemed disposition rule, where the property passes to the deceased spouse, common-law partner or a "qualifying spousal trust". In this situation, the transfer takes place at the adjusted cost base (ACB) of the property, not the FMV of the property and the deemed capital gain is deferred until the spouse or common-law partner dies; or the property is disposed of by the spouse or common-law partner. So if John was married to Mary and left everything to her in his will, the Bell Canada shares would transfer to Mary tax-free at a cost base of $28.
In the good old days of Ozzie and Harriet, the automatic provision was fairly standard. People stayed married and both spouses would usually have mirror wills, leaving all or most of their property to each other.
Today, with the high rate of divorce, second families and spouses who have independent thoughts, it is not that unusual for spouses to have different wills or wills in which they only leave some assets to their current spouse.
Where spouses have different wishes in their wills and don’t leave all their property to their surviving spouse, the deemed disposition rules noted above come into effect. The resultant income tax liability can in some cases be large and where assets are not liquid, the payment of those taxes can sometimes be problematic.
Why Would Spouses Have Different Wishes
There are a myriad of reasons why spouses may not have mirror wills or leave all their assets to each other. Here are some common reasons:
1. Second families- A testator may structure their will to only leave a certain amount to the surviving spouse, or to a spousal trust for their surviving spouse so they can leave other property and monies directly to their children from the first marriage; this triggers the deemed disposition rules on the property left to their children.
3. DINKS – The “double income no kids” cohort often have other family members they wish to benefit from their estate, such as parents, siblings, nieces and nephews. They are confident that their surviving spouse has enough assets of their own and will not need a large inheritance in order to have a prosperous retirement. According to estates lawyer Katy Basi “The wills that we draft for childless testators are often long and sometimes quite complicated. The tax implications of the estate plan need to be carefully considered.”
4. Charitable Wishes – Spouses often have different charitable views. One spouse may want to leave a significant portion of their wealth to charity while the other does not. In this case, the concern is not an income tax issue, as the donation(s) eliminate most of the tax liability, but the issue becomes a question of whether assets must be liquidated to enable the executor to make the donations in the will.
As I have been told my blog posts are too long, I will stop here today. On Wednesday, I will discuss the income tax implications, liquidity concerns and planning issues when spouses don't leave all their assets to each other.
The blogs posted on The Blunt Bean Counter provide information of a general nature. These posts should not be considered specific advice; as each reader's personal financial situation is unique and fact specific. Please contact a professional advisor prior to implementing or acting upon any of the information contained in one of the blogs. Please note the blog post is time sensitive and subject to changes in legislation or law.
I think your blogs are just right, not too long at all. Thanks for the time and thought you put into each topic. You may not get a lot of comments because, hey, what can we readers add when you do such a thorough job? But we all appreciate and love seeing new posts from you.ReplyDelete
Thx for your kind comments; many people say they are too long, so I will now occasionally split into two parts.
As for comments, it is funny, often not very many, maybe it is I confuse people as oppossed to doing such a through job :) on the other hand, I have blogs with over 100 comments and one on rental properties with over 225. So who knows
For what it's worth I want to add my vote to Pursuit's: Your posts are not too long, and there are few comments because often there's nothing much to add.Delete
thx Anon, in the future when I write new posts I am going to try and make them a little less wordy, without taking away the detail I want.Delete
I don't know who would say your posts are too long! They are the length they need to be to give the information in a friendly, useful and often humorous way. In other words, the perfect length!ReplyDelete
Hopefully I won't need to read this one too closely though, as so far we've only had this one marriage and this one set of kids, and we're both hoping to keep it that way....
Thanks for the kind words.
Even with a happy marriage and one set of kids, you could still have different wishes than your hubby. You may wish to give to charity or to a sibling etc.
Another great post Mark. Yes, morbid Mark, but important stuff.ReplyDelete
My wife and I fit into category # 3. Our will isn't too complicated yet but is due up for renewal in another 3-5 years. As life changes, so should the will.
Also, congrats on the Plutus nod. Extremely well deserved my friend.
I always thought you were a DINK :)
The key here and hopefully not an issue for you and your wife for 50 years is that if you do not leave everything to each other you will have a deemed disposition. And since in 50 years your dividend stocks will be worth millions, if u dont leave everything to your wife, there would be a massive tax bill :)
All of your posts on this subject are invaluable. My parents (married 50 years) have 7 figures invested in dividend stocks for at least 25 years but had no plans on the death of the last surviving parent on how the portfolio was to be dealt with other than to leave it in equal parts to their children. As on of the daughters, this always made me uncomfortable. I've been passing on your posts to them and glad to say, the are having an effect.Delete
Thx, I dont just write these blogs for the sake of writing. I hope some of the topics cause people to think and act and I appreciate you telling me your parents have paid attention.
I don't see anything wrong with the Will of the parents of Anon. The surviving spouse inherits the departed spouse's assets, which in turn is left in equal portions to the children upon the death of the the surviving spouse. Would you explain?ReplyDelete
I am not a lawyer, so these are my non legal concerns.
The surviving spouse can decide to change their will and leave everything to charity or the cat and the kids get nothing against the deceased parents wish. Thus, a spousal trust should be considered,.
As noted by Katy Basi in a follow up blog, in some provinces a will becomes invalid upon remarriage.
Can a second spouse benefit from this Spousal Rollover?ReplyDelete
eg: Husband-1 dies, and assets are rolled over tax free to Wife-1.
Wife-1 marries Husband-2.
Wife-1 dies, gives assets to Husband-2.
Would Husband-2 get the assets tax free?
Yes, there is no limitation on the number or spouses, as long as the assets are properly left to the surviving spouse in the will.