The new tax law has left an important estate tax issue up to the IRS to determine. That is what to do if the estate tax exemption reverts to its previous level and the deceased has gifted more than that amount.
The recently passed tax reform bill required Congress to make several compromises because of budget limitations in the amount the bill could add to the deficit and avoid a possible filibuster by Democratic senators.
Those limitations prevented a complete elimination of the estate tax, as had long been proposed by Republicans in government.
The estate tax exemption has now been doubled. However, this could not be made permanent and the exemption is scheduled to revert back to its previous level in 2026.
This creates a potential issue for some estates, as Wealth Management discusses in "Clawback Under New Tax Law."{: target="_blank"}
The issue is what to do if someone in 2018 uses the doubled exemption to make gifts and thus uses up their lifetime exemption under the current law, but then passes away after the exemption limits have reverted to previous levels. The exemption limit to use for the estate is unknown. It is possible that gift amounts over the exemption limit in place at the time the person passes away, could be clawed back into the estate for estate tax purposes.
Instead of deciding how to handle this issue, Congress has authorized the IRS to decide what to do.
It is possible the agency will decide that there should be clawbacks. Therefore, for now people need to be wary and talk to advisors before gifting too much.
Reference: Wealth Management (Dec. 28, 2017) "Clawback Under New Tax Law."{: target="_blank"}