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Cross-Border Families

May 8, 2023
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Many Americans who live abroad end up marrying non-Americans. From an investment and financial planning point of view, this can create opportunities as well as dilemmas. Use the tax code to keep as much money as legally possible away from U.S. taxation.

The planning strategy should be to keep as much income as possible out of the taxation jurisdiction of the IRS. There are a variety of ways to do this in mixed marriages. For example, if the non-U.S. spouse is earning significant income, then “married filing separately” is the appropriate election when it comes to U.S. taxes. Even though this election limits deductions and credits, it prevents the IRS from taxing the non-citizen spouse’s income.

Husbands and wives also need to plan carefully around estate and gift tax issues. At death, there is no limit to the size of the estate that can be transferred tax free to a surviving U.S. citizen spouse. However, if the spouse is not a U.S. citizen, estate taxes will be immediately imposed at a rate of 40% on the entire taxable estate amount.

The estate tax exemption amount is $12 million (2022). This means that only the assets exceeding this amount will be subject to the estate tax.

However, for a wealthy U.S. citizen with a non-Resident Alien spouse, it is important to recognize that this exemption amount applies to assets left to the Non-Resident Alien spouse without benefit of the unlimited exemption amount that prevails when both spouses are U.S. citizens. In certain circumstances, trusts can also be used to address this problem.

Spouses can also transfer up to $164,000 a year (2022) to their non-citizen spouse gift tax free. This provision can provide a very useful planning device for Americans with spouses who have residence in a country with lower tax rates. By making an annual spousal gift, the money can be permanently removed from the tax purview of the U.S. government, both in terms of capital gains, dividend income taxes, and estate taxes.

The U.S. tax code provides a plethora of tax advantaged ways to save for your children’s education. Coverdell accounts and 529s are usually the best options. Americans abroad are often surprised to find that many universities outside the United States are “qualified” institutions: this means that tax-free distributions from these accounts can be used to pay tuition and expenses at these non-U.S. schools. Furthermore, because of the large amounts of money that can be sheltered from taxation through 529s, these accounts have great value as long-term estate planning tools in the right circumstances.

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This commentary is provided for general information purposes only, should not be construed as investment, tax or legal advice, and does not constitute an attorney/client relationship. Past performance of any market results is no assurance of future performance. The information contained herein has been obtained from sources deemed reliable but is not guaranteed.


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