Conclusion
In order to split gifts to a trust when Mom is a beneficiary of the trust, the gifts to children must be ascertainable and severable from gifts to Mom. Unfortunately, there is ambiguity in interpreting this phrase, but the Service seems to permit gift splitting when trust distributions are limited to ascertainable standards of “health, education, maintenance and support,” or when gifts are limited to annual exclusion amounts using Crummey withdrawal rights. The amount of the gift that might be eligible for gift splitting depends on the value placed on the Mom’s ascertainable and severable interest. Ultimately, the client should consult their own tax advisor to decide how to proceed.
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David R. Duringer, JD, LL.M, is a concealed firearm instructor and tax lawyer specializing in business and estate planning; licensed to practice law in the states of California and Washington. He is managing shareholder at Protective Law Corporation, serving Southern California from its Laguna Hills (Orange County) headquarters and satellite offices in San Diego County (Coronado and Carlsbad).
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