Source: The Conversation – USA – By Reid Kress Weisbord, Distinguished Professor of Law and Judge Norma Shapiro Scholar, Rutgers University – Newark

Nothing is more certain than death and taxes, Benjamin Franklin famously declared. And, since 1916, the federal government has imposed an estate tax on the transfer of property owned at death.

But the Trump administration and Republican lawmakers may be on the verge of changing all that. GOP legislators are now considering a massive bill that includes major tax law changes and could pass by June or July 2025. Among the measures under consideration in both the House and Senate is the Death Tax Repeal Act, which would end the federal estate tax and reduce the tax rate on lifetime gifts.

If the Death Tax Repeal Act were to become law, it would happen at a pivotal moment. In the coming years, baby boomers are expected to leave an estimated US$84 trillion to their heirs, in what’s been called the largest wealth transfer in human history.

As law professors who specialize in trusts and estates, we’re interested in what might happen next. Interestingly, while the long-term impact to the federal budget would be significant, repealing the estate tax would complicate estate planning for the wealthy taxpayers who might not save all that much money. To understand why, let’s consider how the estate tax works now.

Estate planning under current law

The estate tax – which opponents of the policy have long derided as “the death tax” – is imposed on property that is transferred at death. It is part of the federal gift and estate tax system, which imposes a 40% tax on gifts made during life or transferred at death. Supporters of the estate tax argue that it reduces inequality and encourages charitable giving.

But most Americans, even the very rich, will never pay any gift or estate tax. That’s because millions of dollars of assets transferred after death are completely exempt from it.

For 2025, the cumulative gift and estate tax exemption is $13.99 million for individuals and $27.98 million for married couples. The current exemption doubled under the Tax Cuts and Jobs Act, which President Donald Trump signed into law in 2017. And it sunsets this year. Unless Congress passes new legislation, the exemption amount will go back to its 2017 base of $5 million for individuals, plus an inflation adjustment. That would increase the number of estates on which it would be levied.

If the Death Tax Repeal Act passes, of course, then there will be no federal transfer tax imposed on estates.

The estate tax is a lightning rod on Capitol Hill, even though it doesn’t affect many Americans. In 2022, the U.S. Treasury collected $22.5 billion in estate tax revenues from 3,170 estates. More than 3 million people died, so only 0.1% of decedents left enough assets for their estates to pay the tax.

The big freeze: How the ultrarich reduce their tax liability

Beyond taking advantage of this generous exemption, wealthy taxpayers currently use several planning techniques to reduce or eliminate estate taxes.

A common strategy involves minimizing tax on assets that are likely to grow in value. Suppose, for example, a person owns property worth $25 million, and they have already used up their exemption (currently $13.99 million). If that $25 million property appreciates in value to $125 million, and the person waits until death to transfer it to the next generation, the entire investment – all $125 million – would be subject to the 40% estate tax.

To reduce those taxes without entirely giving up control, sophisticated “estate freeze” planning techniques allow owners to keep some powers over the gifted property while transferring it for gift tax purposes before assets appreciate in value. In our example, if the $25 million asset were transferred through a freeze device such as an intentionally defective grantor trust, then the only tax would be a 40% gift tax on the $25 million. All of the appreciation – the other $100 million – would incur no gift or estate tax.

Other estate planning techniques could further reduce the valuation for transfer tax purposes through minority interest, lack of marketability and other discounts. It’s through techniques like this that wealthy Americans are able to pass along approximately $200 billion each year in inherited assets without paying estate taxes.

The Death Tax Repeal Act would not directly affect the tax treatment of charitable giving at death – over $40 billion – but it could alter incentives for philanthropic giving.

Repealing the estate tax could upend existing estate plans

If Congress repeals the estate tax but keeps the gift tax as proposed, many estate freeze planning techniques previously used by the ultrarich would become obsolete. There would be no incentive to make a lifetime gift of property that would appreciate: Individuals who hold onto their property until death would avoid both federal transfer and capital gains taxes.

As a result, repealing the estate tax would turn existing estate plans on their head. Estate freeze strategies are premised on a calculated trade-off: To reduce or eliminate estate taxation at death, wealthy donors choose to make lifetime gifts even though doing so alters lifetime ownership rights, generates gift tax liability and sacrifices other tax benefits at death.

Without an estate tax, existing estate freeze plans lock in the costs of lifetime gifting without any payoff at death. What’s more, some estate freeze plans can’t be changed. For example, an intentionally defective grantor trust must be irrevocable to freeze valuation for gift tax purposes.

So while repealing the estate tax might seem appealing to wealthy Americans, the actual tax benefit could be modest at best for taxpayers who established estate plans under the current system. Financial advisers have also expressed concern about creating new estate plans designed to benefit from estate tax repeal because a future Congress could revive the tax.

Repealing the estate tax could also have macroeconomic implications. Tax incentives to retain ownership until death could tie up capital in ways that dampen economic growth. Individuals tend to become increasingly risk-averse with age, so the Death Tax Repeal Act could skew investments toward safer asset classes. That could deprive younger generations of access to capital for new ventures, such as startups.

The bottom line is that repealing the estate tax may hurt both taxpayers and the government. People with sufficient wealth to exhaust the high exemption are likely to have established estate plans that can’t be changed to benefit from estate tax repeal. Meanwhile, for new estate plans that seek to retain property ownership until death, the government will lose an important source of tax revenue – $22.5 billion in 2022 – collected from a tiny number of very wealthy estates that can afford to pay the tax.

And, of course, repeal would also abandon the original purpose of the estate tax, which sought to reduce extreme concentrations of wealth.

The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.

– ref. Repealing the estate tax could create headaches for the rich – as well as worsen inequality – https://theconversation.com/repealing-the-estate-tax-could-create-headaches-for-the-rich-as-well-as-worsen-inequality-254871