Tax Apportionment Clause Resulted in Ex-Wife Owing Estate Tax.

Upon the decedent's death, his ex-wife received approximately $5.4 million of his $7.7 million estate consisting largely of non-probate assets including life insurance deferred compensation/commission plan accounts, IRA account, Sec. 401(k) account and an annuity.  The estate executor mistakenly excluded the non-probate assets from the taxable value of the estate and claimed that the estate was insolvent and that no estate tax was due.  After negotiating with the IRS, the executor agreed to pay $1.2 million in estate tax plus accrued interest of $145,425.  Under the terms of the decedent's will, a tax apportionment clause spread the estate tax liability among the assets that generated estate tax liability.  Because the amount passing to the ex-wife was not covered by the marital deduction, the ex-wife, according to the apportionment clause, bore approximately 70 percent of the estate tax liability.  Upon declining to pay, the executor sued the ex-wife and the court ruled for the executor on the ex-wife's proportionate share of estate tax but not for pre-judgment interest and attorney fees.  The court also determined that $1 million passing to the ex-wife was on account of the divorce settlement between the couple and was a debt of the estate which dropped the overall estate tax bill by almost $500,000 and reduced the ex-wife's tax liability proportionately.  As to the insurance policies, the court determined that they were included in the decedent's estate because the decedent had reviewed them shortly before death and he retained the right to change beneficiaries at the time of death.  Thus, the ex-wife was liable for estate tax attributable to the policies in a proportionate amount under I.R.C. Sec. 2206.  Smoot v. Smoot, No. CV 213-040, 2015 U.S. Dist. LEXIS 46572 (S.D. Ga. Mar. 31, 2015).  

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