Since late December, when it first appeared that estate tax repeal would actually happen, estate planners nationwide have been discussing its potential negative consequences.
Juan Antunez recently commented on a statutory response to this problem proposed for adoption by Florida’s legislature, which convenes in regular session on March 2, 2010. You can track the status of CS/HB 361 here. Full text of the bill is here.
Section 4 of the bill would create a new statute, F.S. 736.04114. Upon application of a trustee or qualified beneficiary, a court would be authorized to construe the terms of a trust instrument containing a formula devise referring to pre-2010 estate tax law. The court could consider the settlor’s likely intent and the facts and circumstances surrounding the creation of the trust, without regard to the apparent plain meaning of the trust instrument. The statute would apply to transfers of beneficial interests in trusts occurring in 2010. It would be retroactive to January 1, 2010.
Antunez reports that statutory fixes are under consideration in several other states, including Virginia, Maryland, Nebraska, South Dakota, Tennessee, Washington, and New York, and provides a useful link to an interesting map published in Forbes showing states’ various estate/inheritance tax laws.