While federal law remains in flux on numerous fronts, there's been a flurry of state-level developments on a number of topics. Here's an overview of some key estate-planning issues that states were focused on as we went to press.

Same-Sex Marriages/Unions

There's been a marked uptick in state-level activity regarding same-sex marriages/unions.

Colorado

Very detailed legislation introduced in Colorado on Jan. 11, 2012 would allow two unmarried adults over age 18, regardless of gender, to enter into a civil union.

The legislation would afford parties to a civil union many of the same benefits and protections under Colorado law as married spouses. The bill specifically lists these benefits, which include rights of inheritance and survivorship, priority for appointment as guardian, conservator or personal representative and recognition under laws regarding medical directives and care. However, the bill provides that because Colorado income tax filings are tied to federal filings, civil union partners will be prevented from filing a joint state income tax return. The bill proposes the creation of a study commission to investigate state income tax treatment of civil unions.

The bill also provides that anyone who enters into a civil union in Colorado consents to the jurisdiction of the Colorado courts for the purpose of any action relating to the civil union, even if one or both parties cease to reside in the state.1

Illinois

On Feb. 8, 2012, the Illinois legislature proposed a bill recognizing same-sex marriage. The proposal would extend to same-sex spouses all the benefits, protections and responsibilities accorded under law to different-sex couples and would repeal the current prohibition on a marriage between two individuals of the same sex.

Illinois currently has a civil union regime. The Illinois proposal doesn't include a mechanism whereby civil union parties would be deemed married as of a certain date, but allows the parties voluntarily to convert their civil union into a marriage. The proposal provides that same-sex couples who enter into a marriage in Illinois consent to the jurisdiction of the Illinois courts for the purpose of any action relating to the marriage, even if one or both parties cease to reside in the state.2

Maryland

Governor Martin O'Malley signed legislation recognizing same-sex marriage on Feb. 13, 2012. In essence, the legislation provides that two individuals, regardless of gender, can marry, provided they're not within defined degrees of kinship (for example, grandparent, parent, child or sibling).3

Missouri

On Jan. 9, 2012, the Missouri legislature proposed an amendment to the state constitution to prohibit Missouri from recognizing any federal action mandating the recognition of same-sex marriage, civil union or any relationship other than the marriage of one man and one woman. The amendment would be submitted to Missouri voters for their approval.4

New Jersey

On Jan. 10, 2012, the New Jersey legislature introduced a bill recognizing same-sex marriage, in lieu of the civil union regime currently authorized under New Jersey law. On Feb. 21, 2012, Governor Chris Christie vetoed the bill and challenged the legislature to put the issue to a referendum. On Feb. 6, 2012, a resolution to amend New Jersey's constitution was introduced. The proposed constitutional amendment would authorize same-sex marriage by providing that “marriage” is the legally recognized union of two persons of any gender. The proposed amendment would be put to a referendum.5

New Mexico

On Jan. 24, 2012, the New Mexico legislature proposed an amendment to the state constitution to restrict marriage to one man and one woman, but the proposal subsequently died.6

Rhode Island

A bill introduced on Feb. 16, 2012 redefines marriage as the legally recognized union of two people, regardless of gender. Marital and familial terms under Rhode Island law would be interpreted consistently with this new definition. The current civil union regime would be repealed, and parties to a civil union that hasn't been dissolved or merged into marriage by Jan. 1, 2013 would be deemed married as of that date.7

Washington state

Governor Chris Gregoire signed legislation on Feb. 13, 2012 recognizing same-sex marriage. The legislation supplants, for the most part, the registered domestic partnership regime authorized under Washington state law. Except in limited circumstances, same-sex couples in a Washington registered domestic partnership would be deemed married as of June 30, 2014, unless the partnership is dissolved or converted into a marriage before that date.8

West Virginia

On Jan. 11, 2012, the West Virginia legislature proposed an amendment to the state constitution to restrict marriage to one man and one woman and to prohibit West Virginia from recognizing same-sex marriages. The amendment would be submitted to West Virginia voters for their approval.9

On the heels of the proposed constitutional amendment, the West Virginia legislature introduced a bill on Feb. 16, 2012, which recognizes civil unions. The bill specifically provides that it's not the legislature's intent to revise the definition or eligibility requirements of marriage. The expressed underlying intent is to provide persons entering into a civil union with the obligations, responsibilities, protections and benefits afforded to spouses.

The bill requires that at least one of the parties to the civil union be a legal resident of West Virginia and that anyone who enters into a civil union in West Virginia consents to the jurisdiction of the West Virginia courts for the purpose of any action relating to the civil union, even if one or both parties cease to reside in the state.10

Other state action

Constitutional amendments banning same-sex marriage will be submitted to voters in Minnesota and North Carolina this year. New Hampshire is considering a bill to repeal same-sex marriage recognition, and same-sex marriage will be put to the ballot by Maine voters in November.11

Dissolving a Marriage

A residency prerequisite to dissolving a marriage may cause particular difficulties for same-sex couples. If a couple who entered into a same-sex marriage or civil union in a state that recognized their relationship later moves to a state that doesn't, how do they dissolve their relationship? It can't be dissolved in a jurisdiction that doesn't recognize their relationship, and they can't satisfy a residency requirement in a state in which they no longer live.

To alleviate this problem, many of the recently introduced proposals provide for the respective state courts to retain jurisdiction over the same-sex marriage/union, even if one or both of the parties move out-of-state.

California

Same-sex marriages were permitted for a brief period in 2008. Pursuant to the Domestic Partnership Equality Act, which became effective on Jan. 1, 2012, a judgment for dissolution of a same-sex marriage can be entered without a residency requirement if the marriage was entered in California and neither party resides in a state that will dissolve the marriage.12

Vermont

In 2000, Vermont enacted legislation permitting civil unions. In 2009, it enacted legislation permitting same-sex marriages.13 However, current Vermont law has a six month residency requirement to institute a proceeding for a divorce or dissolution of a civil union. A bill introduced on Feb. 16, 2012 provides an exemption from the six month residency requirement, provided the marriage/union was entered in Vermont, neither party resides in a state that will dissolve the marriage/union, there are no minor children and the parties file a stipulation that resolves all issues in the action.14

Impact on Planning

Connecticut, Iowa, Maryland (effective Jan. 1, 2013) Massachusetts, New Hampshire, New York, Vermont, Washington, D.C. and Washington state (effective June 7, 2012) recognize same-sex marriage, and there's a flurry of other state-level activity around this issue. What's the impact on planning?

Although a myriad of highly significant state rights are accorded to same-sex spouses in those jurisdictions recognizing same-sex marriage, because the federal Defense of Marriage Act (DOMA) supersedes state law, same-sex couples won't qualify as spouses for federal tax law purposes despite that state recognition. Thus, federal tax benefits extended to married couples, including the unlimited marital deduction, qualified terminable interest property (QTIP) elections and gift splitting, aren't available to same-sex married couples. Accordingly, planning techniques long used for unmarried same-sex couples will continue to be important, even in a jurisdiction that recognizes same-sex marriage.

However, it's important to note that on Feb. 23, 2011, the U.S. Attorney General announced the Department of Justice will no longer defend DOMA, and cases challenging the constitutionality of DOMA are currently being litigated in the courts. Indeed, on Feb. 7, 2012, in the very high profile decision of Perry v. Brown,15 a federal appeals court declared California's ban on same-sex marriage (known as Proposition 8) unconstitutional.

In light of these federal developments, states appear to be racing to poise themselves appropriately in the event DOMA is declared unconstitutional. Given all this momentum, practitioners might consider reaching out to existing clients who may be impacted by these developments. For clients whose plans didn't anticipate federal same-sex marriage recognition, as well as new clients, it might be advisable to consider including a scenario in their planning in which DOMA is declared unconstitutional. That approach might obviate the need to have planning urgently revisited if DOMA is repealed and prevent unintended consequences in the event of death before the estate plan can be revised.

Gift Tax

Only two states in the country currently impose a gift tax — Connecticut and Tennessee.

Tennessee. In January, the Tennessee House and Senate introduced bills that would repeal the Tennessee gift tax, beginning Jan. 1, 2013.16

Estate Tax Bills

A number of states have introduced bills (sometimes conflicting) to phase out or eliminate state estate or inheritance taxes or increase the state tax threshold. Here are some examples of state bills introduced in January and February alone:

Kentucky

This bill freezes the federal credit for state taxes as it was in effect on Jan. 1, 2003 and imposes an estate tax to the extent that credit exceeds the Kentucky inheritance tax. The Kentucky estate tax is tied to the federal credit for state death taxes, the phase-out of which was completed in 2005.17

Maryland

This bill retains the current estate tax filing threshold ($1 million) for decedents dying before July 1, 2012 and then increases it to:

  • $2 million for decedents dying on or after July 1, 2012, but before July 1, 2013;
  • $3 million for decedents dying on or after July 1, 2013, but before July 1, 2014; and
  • $4 million for decedents dying on or after July 1, 2014, but before July 1, 2015.18

New Jersey

These bills increase the estate tax threshold to $1 million for decedents dying after Dec. 31, 2011 (the estate tax threshold is currently $675,000).19

New York

This bill raises the threshold for estate tax (currently $1 million) to:

  • $2 million for decedents dying prior to 2012;
  • $3 million for decedents dying in 2013;
  • $4 million for decedents dying in 2014; and
  • $5 million for decedents dying in 2015.20

Rhode Island

This bill increases the estate tax threshold to $1.5 million for decedents dying after Jan. 1, 2014, adjusted annually for inflation beginning in 2015 (the estate tax threshold for 2012, as adjusted for inflation, is $892,865). A different bill increases the estate tax threshold to $2 million, adjusted for inflation.21

Vermont

This state's bill conforms Vermont's exclusion amount to the federal exclusion amount in effect at the applicable time. The current estate tax threshold in Vermont is $2.75 million.22

Wisconsin

For deaths occurring after Dec. 31, 2011, this bill freezes the federal credit for state taxes as it was in effect on Dec. 31, 2002. The current Wisconsin estate tax is tied to the federal credit for state death taxes, the phase-out of which was completed in 2005.23

State-Level Portability

Illinois

A bill recently signed into law by Governor Pat Quinn retains the $2 million state estate tax exclusion amount for decedents dying prior to Jan. 1, 2012, then increases it to $3.5 million for decedents dying in 2012 and to $4 million for decedents dying on or after Jan. 1, 2013.24 In light of these changes, the Illinois Attorney General has issued an important notice regarding the Illinois estate tax,25 since the federal exemption amount for 2012 decedents is $5.12 million, but the exemption equivalent for Illinois estate tax purposes is $3.5 million. The notice points out that tentative taxable estates between $3.5 million and $5.12 million will owe an Illinois estate tax without any corresponding federal estate tax liability and must prepare and file the Illinois estate tax return together with a federal estate tax return, even though the federal return wouldn't normally be required to be filed. For persons dying on or after Jan. 1, 2009, the notice confirms that the estate may make a QTIP election for Illinois purposes, which is larger than the federal QTIP election. The maximum Illinois QTIP election allowable for decedents dying in 2012 is $1.62 million (the difference between $5.12 million and $3.5 million).

The notice also states that the portability and carryover of the unused federal exemption to the surviving spouse is inapplicable to the computation and assessment of the Illinois estate tax.

On Feb. 8, 2012, on the heels of the notice issuance, legislators introduced a bill in Illinois to allow for portability of exclusion amounts between spouses. In the case of a surviving spouse of a decedent who died after Jan. 1, 2012, the bill provides that the Illinois exclusion amount also includes the unused exclusion amount of the predeceased spouse.26

Estate Tax Guidance

Maine

On Feb. 14, 2012, the Maine Department of Revenue Services issued an amended rule regarding Maine's estate tax. Among other changes, the rule was updated to reflect the fact that the “Maine exclusion” (the applicable federal exclusion amount for Maine estate tax purposes) will be $2 million for decedents dying after Dec. 31, 2012. The Maine exclusion amount is currently $1 million.

According to the rule, the maximum allowable Maine QTIP deduction is the difference between the decedent's federal exclusion amount or, if no federal return is required, the pro forma federal exclusion amount and the Maine exclusion amount. For estates of decedents dying on or after Jan. 1, 2010, but before Jan. 1, 2011, the total allowable Maine QTIP is $2.5 million. For estates of decedents dying on or after Jan. 1, 2011, the rule was updated to provide that the total allowable Maine QTIP will be calculated based on the federal exclusion amount as of the decedent's actual date of death.27

Carryover Basis

Pursuant to 2010 federal legislation, the executor of an individual dying in 2010 can opt out of the federal estate tax regime and into a modified carryover basis regime. However, it's not possible to opt out of a state estate tax regime. Accordingly, the question arose: If the estate of a 2010 decedent opts out of the federal estate tax regime, but is liable for the payment of state estate taxes, will the estate assets be stepped up to date-of-death value for state capital gains tax purposes?

Massachusetts

In Directive 11-7,28 the Massachusetts Department of Revenue provides that for Massachusetts estate tax purposes, the basis of property acquired from decedents who died in 2010 is carryover basis. Unlike federal law, carryover basis is mandatory in Massachusetts for 2010 decedents and the executor of an estate can't make an election. In other words, carryover basis applies for Massachusetts purposes whether or not an election is made to opt out of the federal estate tax regime. Why? Because the Internal Revenue Code, as of Jan. 1, 2005, is applicable for Massachusetts income tax purposes for 2010 and 2011. Changes made to federal law in 2010 weren't part of the IRC on Jan. 1, 2005. At that time, the IRC provided for the 2010 sunset of the estate tax and the implementation of the carryover basis regime.

The Directive confirms that the Massachusetts basis of property acquired from decedents dying in 2011 or thereafter is the stepped-up basis.

New York

Due to the way New York interacts with federal law (adopting the IRC as of July 22, 1998 for estate tax purposes, but adopting federal law as of the current year for income tax purposes), the New York Department of Taxation and Finance has confirmed that even if carryover basis applies for a 2010 decedent for federal purposes, both estate and capital gains taxes may be payable with respect to the same property for New York purposes.29

Decanting

There's also been a flurry of state-level activity regarding decanting, whereby the assets of an irrevocable trust can potentially be appointed into a new trust with different terms. The ability to appoint the assets of an old trust into a new trust can be a tremendous tool for trustees in dealing with changed circumstances, correcting mistakes, facilitating tax benefits or optimizing a trust's administration. Ironically, the flurry of decanting legislation arrives against the backdrop of Notice 2011-101, issued on Dec. 20, 2011 by the Treasury Department and Internal Revenue Service, to request comments regarding decanting. According to Notice 2011-101, the Treasury Department and IRS are studying the tax implications of a change in the beneficial interests of a trust pursuant to a decanting transfer.

In terms of state-level activity, a number of proposals recently have been introduced and/or enacted. Illinois, Kentucky, Michigan and Rhode Island recently introduced decanting legislation.30 Alaska recently introduced legislation to revise and expand its existing decanting regime.31

Revisions to South Dakota's decanting regime were enacted in March 2012.32 Ohio and Virginia passed decanting statutes in December 2011 and March 2012, respectively,33 and New York passed significant amendments to its decanting statute in August 2011.34

While the full impact of the IRS' interest can't be known until the study period has concluded and guidance is issued, practitioners should exercise extra caution when considering a decanting that could shift beneficial interests, due to the potential risk that some actions may later be considered recognition events. (For more information on state decanting laws, see “Decanting: A Statutory Cornucopia” by Rashad Wareh and Eric Dorsch (p. 22) in the March 2012 issue of Trusts & Estates.)

Unitrust Regimes

Prudent investor principles require trustees to invest for total return. In practice, however, it might be very difficult for a trustee to invest for the best overall return for a trust, without regard to the source of that return, if the income beneficiaries are pressuring the trustee for more income and the remainderpersons are pressuring the trustee for more growth.

Fortunately, depending on the jurisdiction, trustees potentially have two immensely valuable tools at their disposal — power to adjust and unitrust regimes. These regimes can facilitate total return investing, as embodied in prudent investor principles.

Under a power to adjust regime, the trustee is permitted to make adjustments between income and principal, to be fair and reasonable to all beneficiaries, by redefining a portion of principal as income (or vice versa). Under the unitrust regime, the trustee can convert the income beneficiary's interest into a unitrust payout of a fixed percentage of the trust's principal. Some jurisdictions offer trustees the choice of these two regimes, others offer one or the other.

Alaska

Alaska offers both power to adjust and unitrust regimes. Alaska's unitrust regime currently provides for a 4 percent default unitrust payout calculated over a three-year rolling period. As part of a proposal introduced on Feb. 29, 2012, a trustee would have the ability to select a unitrust payout between 3 percent to 5 percent and to determine whether the smoothing period should be three, four or five years.35

Florida

Florida offers both power to adjust and unitrust regimes. Under Florida's unitrust regime, the unitrust payment is computed by multiplying the applicable unitrust percentage (3 percent to 5 percent) by the fair market value (FMV) of the trust assets. Among other changes, a proposal that has passed both houses as of March 2012 would require the unitrust payout to be determined with reference to the average FMV of the trust assets over a three-year period. Many states have incorporated such a rolling average approach in determining the appropriate payout, in an effort to smooth out short-term volatility.36

Kentucky

A Kentucky bill introduced in January 2012 includes a proposal to give trustees the power to opt into a unitrust regime. Kentucky currently has only a power to adjust regime.37

Mississippi

Mississippi is currently the only jurisdiction in the country that hasn't adopted any form of total return legislation. In February 2012, a bill was introduced in the Mississippi House to enact the “Mississippi Principal and Income Act.” The bill, which has passed the House and has been sent to the Senate, includes a power to adjust regime.38

Vermont

Vermont currently has a unitrust regime. Included in a larger bill introduced on Feb. 23, 2011 is a proposal to grant trustees the power to adjust. The bill passed the Vermont house on Feb. 3, 2012 and will be sent to the Senate.39

Grantor Trusts

The intentionally defective grantor trust is a popular estate-planning technique, whereby the grantor is treated as the owner of the trust property for income tax purposes, but the trust property is typically excluded from the grantor's estate for estate tax purposes. Payment of the income taxes by the grantor is, in effect, a further gift to the trust, which can grow without depletion for the tax liability. Revenue Ruling 2004-64 provides that a trustee's discretionary authority (whether or not exercised) to reimburse the grantor for the grantor's income tax liability attributable to trust assets won't, by itself, cause the value of the trust's assets to be includible in the grantor's gross estate. The IRS cautioned, however, that estate tax inclusion may occur if applicable local law subjects the trust's assets to the claims of the grantor's creditors.

New Jersey

Identical bills introduced in the New Jersey House and Senate in January 2012 provide, in effect, that the trustee's discretion to reimburse the trust creator for income taxes paid isn't to be considered a right that would subject the trust assets to the claims of the creator's creditors.40 According to the bill summary, the amendment is in response to Rev. Rul. 2004-64 and is modeled after New York's Estates, Powers & Trusts Law Section 7-3.1(d).41

Note, however, that this bill must now be read against the backdrop of a proposal included in the General Explanations of the Administration's Fiscal Year 2013 Revenue Proposals, released Feb. 13, 2012 (known as the “Greenbook”), which would subject assets held in grantor trusts to transfer taxes. Pursuant to this new proposal, if a grantor is treated as an owner of the trust for income tax purposes: (1) the assets of the trust would be included in the gross estate of the grantor for estate tax purposes; (2) any distribution from the trust to one or more beneficiaries during the grantor's life would be subject to gift tax; and (3) if at any time during the grantor's life, the grantor ceases to be treated as an owner of the trust for income tax purposes, the remaining trust assets would be subject to gift tax.

Rule Against Perpetuities

South Carolina

A bill introduced in South Carolina on Feb. 22, 2012 includes a proposal to abolish the rule against perpetuities (RAP). The proposal, which provides that no interest will be void by reason of any RAP, would apply to property interests created before the effective date of the legislation, absent a clear indication of contrary intent, as well as to property interests created on or after the effective date.42

Formula Clauses

Formulaic construction clauses tied to federal tax concepts often became distorted in 2010 when the federal estate tax initially lapsed. To prevent those distortions, many states enacted statutes to aid in the construction of formulaic dispositions.

Ohio

Although not specifically directed at 2010 issues, a bill that was signed by Governor John R. Kasich in January 2012 included provisions expanding Ohio's existing private settlement mechanism for resolving disputes regarding wills and trusts. The family settlement option has been expanded to include resolution of disputes over the meaning of the terms of a trust that refer to the federal estate tax, federal generation-skipping transfer tax or Ohio estate tax or that contain a division of property based on the imposition or amount of one or more of those taxes, to give effect to the settlor's intent. Judicial modification is also authorized under those circumstances.43

QDOT Trusts

New York

There's a proposal to eliminate the requirement for the creation of a qualified domestic trust (QDOT), when no federal return is required.

For a disposition to a non-U.S. citizen surviving spouse to qualify for the federal marital deduction, the disposition must pass in a QDOT, which results in a deferral of estate tax until the death of the surviving spouse. Pursuant to identical bills introduced in the House and Senate on March 6 and 8, 2012, respectively, the requirement to create a QDOT would be eliminated if no federal return is required to be filed.44

The current estate tax threshold in New York is $1 million. Accordingly, for estates between $1 million and below $5 million, there's a New York filing requirement without a corresponding federal filing requirement. If no federal return is required, the New York estate tax is based on the taxable estate computed on a pro-forma federal return, which is filed with the New York return. To qualify for the federal marital deduction on the pro-forma return, dispositions to non-U.S. citizen spouses must be in the form of QDOTs. The marital deduction on the pro-forma return reduces the hypothetical federal taxable estate and that flows through to the New York estate tax computation.

The summary accompanying the bill points out that, although dispositions to non-U.S. citizen surviving spouses must be in QDOT form to qualify for the federal marital deduction, there's no corresponding New York tax imposed on the termination of a QDOT or a principal distribution from a QDOT. According to the bill summary, because no New York tax is imposed on QDOT terminations or distributions, there's no New York purpose served by requiring the property to be placed in a QDOT, which can in fact be terminated almost immediately. The only consequence of the QDOT requirement is the significant attendant legal and administrative costs.

In essence, the proposal provides that if a federal return isn't required to be filed, it isn't necessary that a disposition to a non-U.S. citizen spouse pass in a QDOT if the disposition would otherwise qualify for the federal estate tax marital deduction.

Self-Settled Trusts

Virginia

There's a proposal to allow self-settled spendthrift trusts.

In some jurisdictions, the assets of a self-settled trust can be protected from the claims of creditors. This proposal allows assets transferred by a settlor to an irrevocable trust to be protected from creditors to the extent that the settlor is a discretionary beneficiary only, and there's at least one other beneficiary. Among other reasons, the trust won't be deemed revocable merely because the settlor has a special testamentary power of appointment or because the trust instrument expressly provides for the direct payment of income taxes attributable to tax income or the reimbursement to the settlor for such tax payments.

The trust must be governed by Virginia law and have at least one trustee who resides in Virginia or is an entity authorized to engage in trust business in Virginia, who materially participates in the administration of the trust within Virginia. There's a five-year statute of limitations for creditor's actions, which runs from the date of transfer to the trust.

The proposal has passed both houses and has been sent to the governor for signature.45

This material is written by Lazard Wealth Management LLC for general informational purposes only and does not represent our legal advice as to any particular set of facts and does not convey legal, accounting, tax or other professional advice of any kind; nor does it represent any undertaking to keep recipients advised of all relevant legal and regulatory developments. The application and impact of relevant laws will vary from jurisdiction to jurisdiction and should be based on information from professional advisors. Information and opinions presented have been obtained or derived from sources believed by Lazard Wealth Management LLC to be reliable. Lazard Wealth Management LLC makes no representation as to their accuracy or completeness. All opinions expressed herein are as of the date of this presentation and are subject to change.

Endnotes

  1. Colorado S.B. 2, 68th General Assembly (2012).
  2. Illinois H.B. 5170, 97th General Assembly (2012).
  3. Civil Marriage Protection Act, 2012 Laws of Maryland, Ch. 2.
  4. Missouri S.J.R. 45, 96th General Assembly (2012).
  5. New Jersey S.C.R 88, 215th Legislature (2012).
  6. New Mexico H.J.R. 22, 50th Legislature (2012).
  7. Rhode Island H.B. 7845, S.B. 2504 (2012).
  8. 2012 Laws of Washington, Ch. 3.
  9. West Virginia S.J.R. 2, 80th Legislature (2012).
  10. West Virginia H.B. 4569, 80th Legislature (2012).
  11. 2011 Laws of Minnesota, Ch. 88, North Carolina Session Law 2011-409, New Hampshire H.B. 0437 (2011), Maine Attorney General Press Release, www.maine.gov/sos/news/2012/samesexmarriage.html.
  12. 2011 Laws of California, Ch. 721.
  13. 15 V.S. A. Sections 1201-1207, 15 V.S.A. Section 8.
  14. Vermont H. 758 (2012).
  15. Perry v. Brown, 2012 U.S. App. LEXIS 2328 (2012).
  16. Tennessee S.B. 2777, H.B. 2840 (2012).
  17. Kentucky H.B. 127 (2012).
  18. Maryland S.B. 402 (2012).
  19. New Jersey S.B. 804, A.B. 2731. A.B. 2604, 215th Legislature (2012),
  20. New York S.B. 6015 (2012).
  21. Rhode Island S.B. 2201, S.B. 2471 (2012).
  22. Vermont S. 196 (2012).
  23. Wisconsin A.B. 637 (2012).
  24. Illinois Publ. Act 97-0636 (2011).
  25. http://illinoisattorneygeneral.gov/publications/pdf/2012_Instruction_Fact_Sheet.pdf.
  26. Illinois H.B. 5297 (2012).
  27. MRS Rule 601, www.maine.gov/revenue/rules/pdf/rule601.pdf.
  28. www.mass.gov/dor/businesses/help-and-resources/legal-library/directives/directives-by-decade/2011-directives/dd-11-7.html.
  29. TSB-M-11(9)M, www.tax.ny.gov/pdf/memos/estate_&_gift/m11_9m.
  30. Illinois H.B. 4662 (2012), Kentucky H.B. 155 (2012), Michigan S.B. 980 (2012) and Rhode Island H.B. 7664, S.B. 2497 (2012).
  31. Alaska S.B. 165 (2012).
  32. South Dakota H.B. 1045 (2012).
  33. Ohio Session Law No. 2011-65, Virginia S.B. 110 (2012) passed House and Senate, not yet signed by governor as of March 10, 2012.
  34. 2011 N.Y. Laws, Ch. 451.
  35. Alaska S.B. 165 (2012).
  36. Florida S.B. 1050 (2012).
  37. Kentucky H.B. 155 (2012).
  38. Mississippi H.B. 732(2012).
  39. Vermont H. 327 (2012).
  40. New Jersey S.B. 765, A.B. 1086 (2012).
  41. New Jersey S.B. 765, A.B. 1086 (2012).
  42. South Carolina S. 1243 (2012).
  43. Ohio Session Law No. 2011-65.
  44. New York A.B. 9481 (2012), S.B. 6649 (2012).
  45. Virginia S.B. 11 (2012).

Sharon L. Klein is a managing director and head of wealth advisory at Lazard Wealth Management LLC in New York City