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June 13, 2023 The Tax Lawyer

The Incapacitated Grantor and the Revocable Trust: Unnecessary Tax Complexity and a Reform Proposal

Vol. 76, No. 3 - Spring 2023

by Sergio Pareja


Revocable trusts are common will substitutes that also provide a mechanism for managing a person’s assets in the event of mental incapacity. Generally speaking, these trusts are grantor trusts for federal income tax purposes, which means that the person who created the trust, the grantor, will continue to report the income and deductions from trust assets as if the trust did not exist. When a grantor is afflicted with mental incapacity, say as a result of dementia or a stroke, a serious question is raised about the income tax status of the trust. Specifically, absent a specific state law or trust provision to the contrary, the trust arguably ceases to be a grantor trust. This has numerous potential adverse tax consequences, including increased taxes due to a compression of income tax rates, the potential loss of the exclusion of gain on the sale of a primary residence, and the potential loss of S corporation status if the trust owns S corporation stock. This Article proposes a straightforward solution: the law should be changed to create a default rule that grantor trust status for a revocable trust will continue until an incapacitated grantor’s death.

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