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Estate and Gift Tax Issues in a Prenup or Divorce

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Many State Courts address the filing of income tax returns in divorce situations. Trial Courts have discretionary authority to compel parties in divorce proceedings to file joint tax returns. However, similar authority does no exist with respect to filing gift tax returns.

Each person has a federal tax exemption for lifelong gifts and estate transfers equal to $5,430,000.00 (adjusted annually for inflation). In addition, each person is entitled to give a gift each year of a present interest equal to $14,000.00, without incurring gift tax or utilizing a portion of the exemption and without the need to file a gift tax return. When a married taxpayer makes a gift to a third party, his or her spouse can consent to split the gift – That is, treat the gift as having been made half by each spouse. For example, a married couple can transfer a gift of $28,000.00 to a third party, without utilizing either spouse’s exemption. However, a gift tax return is required to be filed if the parties are consenting to split gifts.

In the absence of established precedent, it is recommended that the issue of gift splitting be addressed in a premarital agreement. May times, premarital agreements will address income tax issues, including tax liability or divorce filing issues.

In preparing your premarital agreement, talk to a prenuptial agreement lawyer to understand if your agreement should incorporate provisions regarding the use of the parties’ gift and estate tax exemption amounts and under what circumstances the parties will consent to split gifts. A properly prepared premarital agreement that addresses gift splitting and use of the parties’ gift and estate tax exemption can potentially eliminate costly litigation, delays that may mentally impact the parties based upon tax filing deadlines, and uncertainty regarding the Court’s discretionary ruling in the absence of precedent.


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