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Repeal or no repeal? President Trump has promised to abolish the federal estate tax, but uncertainty rules

Friends and clients have lately been asking me: Will President Donald J. Trump repeal the federal estate tax like he promised on the campaign trail? What happens if he does? How will any possible change affect individuals like me?

Your questions may sound similar, and you should hear what I’ve been telling people. First, the details of Trump’s plan are still murky. Second, it is politically uncertain whether Congress would approve a repeal of the federal estate tax aka the death tax. Finally, the tax only affects a very small number of people.

So back to Trump’s plan — or rather, what we know about it. While campaigning, Trump proposed replacing the estate tax for assets exceeding a value of $10 million with a capital gains tax. He didn’t specify whether the $10 million limit should apply to individuals, couples or families. He also didn’t specify whether the capital gains tax would come due when the estate holder dies or later, when his or her heirs sell an asset. Either way, the maximum tax for capital gains is 20 percent. That is significantly lower than the current estate tax, which is 40 percent.

The exemption limit for 2017 is $5.49 million per individual

Currently, only a very small fraction of estates pay the death tax. For all others exemptions apply. The exemption limit for the year 2017 has been set at $5.49 million per individual. And thanks to a tax code feature called portability, couples can double the exemption. Practically speaking, this means that only about two in 1,000 estates pay the tax. (The tax nevertheless generates significant revenue for the government. For 2016, it is estimated to bring in about $19 billion.)

Historically, the federal estate tax saw drifts back and forth until about a century ago. But since 1916, it has been in place almost consistently. Republican party efforts to permanently abolish the tax failed twice during George W. Bush’s presidency, in 2002 and 2006. (There was, however, one year that saw a temporary repeal of the tax. For deaths in 2010 it wasn’t collected.)

Different from Bush, Trump can lean on Republican majorities in the House and the Senate where the GOP now holds 52 seats. But repealing the estate tax for good would require a supermajority of 60 votes in the Senate. Where would the eight missing votes come from?

My advice to anyone amidst the uncertainty surrounding the federal estate tax? Stay tuned for more and remember that estate plans, as I’ve said before, are works in progress. New laws and significant life events such as a marriage or divorce, the birth of a child or a death in the family almost always call for a visit to your estate planning attorney. He or she will help you adapt your plan.

By Kevin J. Moore