Florida Estate Planning and Probate Law Blog focused on recent case law and planning ideas.


In 2011, Congress raised the estate tax exclusion amount to $5 million per person (indexed for inflation) and added portability to the estate tax laws. The portability provision is an election that allows a surviving spouse to carry over any unused portion of their deceased spouse’s estate tax exclusion and shield an increased amount of assets from the estate tax. Under the portability provision a surviving spouse had nine (9) months to make the election or it was lost. In 2014, the IRS issued Revenue Procedure 2014-18 that provided a simplified method for obtaining an extension of time to make a portability election for estates of decedents dying after 2010, if the estate was not required to file an estate tax return and if the decedent was survived by a spouse. However, the simplified method was available only on or before December 31, 2014. Subsequently, the IRS issued private letter rulings which granted an extension of time to elect portability when the decedent’s estate was not required to file an estate tax return. To address the tremendous amount of private letter ruling requests, on June 9, 2017, the Internal Revenue Service issued Revenue Procedure 2017-34 (the “Procedure”). The Procedure, which is effective immediately, provides a new simplified method to obtain permission for an extension of time to file Form 706 (Federal Estate Tax Return) and elect portability. The Procedure is available to all eligible estates through January 2, 2018, or the second anniversary of the decedent’s date of death. If an estate misses the new two (2) year deadline it may still file for a private letter ruling asking for relief to elect portability.


With the number of retirees moving to states which do not access an income, estate or inheritance tax many states are trying to find ways to recoup the lost revenue. The Minnesota Department of Revenue previously took the position that the location of a person’s attorney, CPA, financial adviser or bank account determined where an individual is domiciled for income tax purposes. This was in addition to Minnesota law which found that an individual is a resident of Minnesota for income tax purposes if he or she is either: (1) domiciled outside Minnesota, but maintains a place of abode in the state and spends in the aggregate more than one-half of the tax year in Minnesota (the “183-day test”), or (2) domiciled in Minnesota. The Minnesota tax bill signed into law on May 30, 2017, included a legislative amendment specifically removing from consideration in a domicile dispute the location of an individual’s attorneys, CPAs, financial advisers and banking relationships. The new law is effective for tax years beginning after December 31, 2016. This creates one less hurdle to overcome when becoming a resident of another state.


Maintaining an offshore bank account is not illegal, however, failing to report income and interest earned is tax evasion. Effective January 1, 2017, IRS Revenue Procedure 2017-31 added Belgium, Columbia and Portugal to the list of countries that participate in the automatic exchange of information on bank interest paid to nonresident alien individuals. This addition means there are now 43 countries participating in the automatic exchange program. The IRS only shares information with countries that have entered into this mutual information exchange agreement. The IRS is statutorily barred from sharing information with another country without such an agreement in place. All U.S. information exchange agreements require that the information exchanged under the agreement be treated and protected as secret by the foreign government. This is one of the most effective tools the U.S. Government has to combat tax evasion.


The State of Minnesota's recent budget brings it closer to joining the thirty-two (32) states that do not impose a state inheritance or estate tax in addition to the federal estate tax. The state budget increases the estate tax exemption amount to $2.1 million for 2017 (from the current $1.8 million level). The change is retroactive to January 1, 2017, and includes incremental increases in the exemption amount to $2.4 million in 2018, $2.7 million in 2019, and $3 million by 2020. The Minnesota estate tax doesn’t have a portability provision and tops out at 16%.


Tax reform dating back to 2014 has resulted in an increase in the District of Columbia's 2017 estate tax exemption amount to $2 million. In 2018 the exemption amount is anticipated to be equal to the 2017 federal exemption amount of $5.49 million. Currently, eighteen (18) states and the District of Columbia impose an estate or inheritance tax—separate from the federal estate tax. However, neighboring states have been repeal their estate and inheritance tax by raising the exemption amount to the federal level. For example, Maryland increased its 2018 exemption to $4 million in 2018, and the federal exemption amount in 2019. The Commonwealth of Virginia does not impose an estate tax on decedent estates.


In 2018, Florida voters will have the opportunity to vote on a constitutional amendment to raise the Florida homestead exemption from $50,000 to $75,000, on homes worth $100,000 or more. If 60% of voters approve, the new rate will take effect January 1, 2019. The Florida homestead exemption reduces the value of a Florida residents home for property tax assessment purposes. The proposed amendment would save Florida state residents about $644 million with the average homeowner receiving an annual savings of $170. Florida municipalities and counties are concerned about the decreased revenues impact on critical services (fire department, library, police, etc...).


The IRS has issued Revenue Procedure 2017-37 which contains the annual inflation-adjusted contribution, deductible and out-of-pocket expense limits for health savings accounts (HSAs) in 2018. Annual contribution limitations, deductibles and out of pocket expenses for 2018 increased in all categories from 2017: Limitation on deductions for an individual with self-only coverage under a High Deductible Health Plan (HDHP) to $3,450 Limitation on deductions for an individual with family coverage under an HDHP to $6,900 Annual deductible for self-only coverage that is not less than $1,350 Annual deductible for family coverage that is not less than $2,700 Annual out-of-pocket expenses (deductibles, co-payments, and other amounts, but not premiums) for self-only coverage - do not exceed $6,650 Annual out-of-pocket expenses (deductibles, co-payments, and other amounts, but not premiums) for family coverage - do not exceed $13,300


In an effort to help protect the elderly U.S. population the Financial Industry Regulatory Authority (FINRA) has announced that the Securities and Exchange Commission (SEC) has approved a new rule and an amendment that are specific to customers who are elders. Regulatory Notice 17-11 explains the new rule and amendment: (1) the adoption of new FINRA Rule 2165 (Financial Exploitation of Specified Adults) to permit members to place temporary holds on disbursements of funds or securities from the accounts of specified customers where there is a reasonable belief of financial exploitation of these customers; and (2) amendments to FINRA Rule 4512 (Customer Account Information) to require members to make reasonable efforts to obtain the name of and contact information for a trusted contact person for a customer’s account. Both New Rule 2165 and the amendments to Rule 4512 become effective February 5, 2018. The new rule and amendment are designed to enable financial specialists to be able to more quickly and effectively address suspected financial exploitation of seniors and other specified adults.


Many individuals in our aging population are transitioning from home ownership to life in an assisted living facility (“ALF”). Many ALF’s require a onetime entry fee and ongoing monthly charges for housing and services (meal plans, housekeeping, transportation, and social and recreational activities). The benefit of an ALF is that when a resident’s health and personal care needs become more acute, they are not forced to move to a new facility, as their level of service can be increased to include long-term care and skilled nursing care. Although the costs of an ALF can be substantial, a percentage or all of the costs can be deducted as a medical expense income tax deduction either by the individual or third party if they are providing more than half of the resident’s support. Section 213(a) of the Internal Revenue Code (IRC) allows as a deduction any expenses that are paid during the taxable year for the medical care of the taxpayer, his or her spouse, and dependents who are not compensated by insurance or otherwise. Estate of Smith v. Commissioner, 79 T.C. 313, 318 (1982). The deduction is allowed only to the extent the amount exceeds seven and one-half (7.5%) percent of adjusted gross income. Sec. 213(a); sec. 1.213-1(a)(3), Income Tax Regs. For purposes of Sec. 213 the term “medical care” includes amounts paid “for the diagnosis, cure, mitigation, treatment or prevention of disease, or for the purpose of affecting any structure or function of the body.” The entire ALF cost, including room and board, can be fully deducted on a federal income tax return as a medical expense if the individual’s health problems are classified as being “chronically ill” and if the appropriate services are “provided pursuant to a plan of care prescribed by a licensed health care practitioner” (physician, registered professional nurse or licensed social worker). An individual will qualify as “chronically ill” if a licensed health care practitioner certifies that the individual: (i) is unable to perform at least two (2) basic activities of daily living (including eating, toileting, transferring, bathing, dressing) without assistance from another individual due to loss of functional capacity for at least ninety (90) days; or (ii) requires substantial supervision to be protected from threats to health and safety due to severe cognitive impairment.


In Gallardo v. Dudek (N.D. Fla., No. 4:16-cv-116-MW/CAS, April 18, 2017), a federal district court ruled that federal law prohibits the state of Florida from seeking reimbursement for Medicaid payments it made on a recipient’s behalf from portions of the recipient’s personal injury settlement that were allocated to future medical expenses. Florida’s reimbursement statute uses a uniform formula in which the recipient’s gross settlement is first reduced by twenty (25%) percent to account for attorney fees, the remainder is divided in half (1/2), and the Agency for Health Care Administration (AHCA), Florida’s Medicaid agency, is then entitled to recover the lesser of its total medical payments or one half (1/2). Under this formula, AHCA would recover $323,508.29 in medical payments from Gianinna's settlement. Gianinna’s parents filed suit against the agency in federal court seeking an injunction and a declaration that Florida’s reimbursement statute violates federal law inasmuch as it allows the state to recover from the portion of her settlement beyond that allocable to past medical expenses. AHCA countered that it was entitled to satisfy its lien from the portion of the settlement representing compensation for both past and future medical expenses. The parties filed cross motions for summary judgment. The U.S. District Court, N.D. Florida, granted the Gallardos’ motion for summary judgment and denied AHCA’s motion. The court held, consistent with the U.S. Supreme Court’s decision in Arkansas Department of Health and Human Services, et al. v. Ahlborn (547 U.S. 268 (2006)), that the AHCA is entitled to recover for past medical payments it made on Gianinna’s behalf only from that portion of the settlement allocated to past medical expenses. The court held that where the state reimbursement law explicitly allows for recovery from the portion of the settlement attributable to future medical care, that portion of the state law violates, and is preempted by, federal Medicaid law.