Passage of Wisconsin Remedial Legislation Regarding the 2010 Estate Tax Repeal

With the one-year repeal of the Federal Estate Tax, there has been concern regarding the interpretation of many wills and trusts that base dispositions at death by reference to the Federal Estate Tax and/or the Federal Generation-Skipping Transfer Tax. Although many believe that Congress will retroactively reinstate the Federal Estate Tax and the Federal Generation-Skipping Transfer Tax for the year 2010, as of the writing of this update, no concrete action has been taken.

In response to the repeal, on May 13, 2010, Governor Doyle signed 2009 Senate Bill 670 into law creating Wis. Stat. § 854.30. This legislation, which was drafted primarily by Mark Shiller of our Estate Planning Team, provides greater certainty in the administration of the estates of decedents dying in the year 2010 whose wills or trusts contain dispositive provisions premised in some manner on the presence of the Federal Estate Tax and/or the Federal Generation-Skipping Transfer Tax. A number of other states have passed or are considering remedial legislation as well, although Wisconsin's structure is somewhat unique.

In short, the provisions of the new Wis. Stat. § 854.30, applicable to decedents dying in 2010, provides the following:

• Formula provisions premised on the Federal Estate Tax and/or Generation-Skipping Transfer Tax will apply in the same manner as if the death occurred in the year 2009.
• If, however, the decedent is survived by a spouse, all of the decedent's descendants are also descendants of the surviving spouse, and the surviving spouse is a beneficiary of each trust funded by the formula, then the Applicable Exclusion Amount and the Federal Generation-Skipping Transfer Tax exemptions will be assumed to be unlimited (e.g., the Family Trust or Credit Shelter Trust will receive the decedent's entire estate).
• The administrator of the decedent's estate or a beneficiary may petition the Court for a different application of the formula contained in the will or trust.
• Wis. Stat. § 854.30 does not apply to estate planning instruments executed or amended after December 31, 2009 or to estate planning instruments containing a contrary intent for the disposition of the estate in the event of a death occurring during the repeal.

If you have questions regarding the new Statute and its applicability to your estate plan, please contact a member of our Estate Planning Team.