Pros and Cons of Florida’s New Community Property Trust law

So, you’ve heard the buzz about an exciting new tax-saving tool in Florida,  but you’re still confused about whether this will work for your clients? Join me in a whimsical bit of time travel:

Flush with cash from his success as a playwright, William Shakespeare impulsively bought a bauble for his beloved wife: a condo in Florida. They both became citizens of the U.S. domiciled in Florida.

Related: New Florida Law Could Help Married Couples Realize Major Tax Savings

The Bard was no financial rube, though. He’d heard about the Florida Community Property Trust law, or CPT, and he was intrigued.

Still, puzzling over the literature on the CPT, Shakespeare grew confused. Thinking himself alone on his beachfront balcony, he lamented loudly, “To CPT, or not to CPT; that is the question.” 

Sitting on his balcony nearby, Blaise Pascal, his neighbor, the brilliant 17^th century French philosopher and mathematician, overheard the Bard.

Pascal paused his philosophical ponderings. “Will,” he volunteered from his balcony. “Did I just overhear you musing about a CPT?”

Shakespeare sheepishly admitted he was talking to himself. “Yes, my confusion is as boundless as the sea,” he confides. He has large unrealized capital gains in his real estate portfolio, which includes a fully depreciated apartment building occupied by actors. He despises depreciation recapture taxes, and he dislikes paying the 3.8% net investment tax on gains. Most of all, he abhors paying capital gains taxes.

Pascal listened carefully. Shakespeare’s dilemma was an intriguing opportunity to implement his famous philosophical argument dubbed Pascal’s Wager. “Will,” he said, “there are four outcomes to consider.” He patiently explained the following:

1. Will employs a CPT, and the strategy succeeds yielding generous savings. The tax basis in the stock portfolio he shares with his wife, their depreciated real estate and even the appreciation in their home, would step up to full fair market value. Significant taxes were avoided.
2. Will employs a CPT, and the strategy fails. His losses are minor transaction costs to set up the CPT.
3. Will decides against a CPT, only to learn too late that that the strategy would have succeeded. His losses would be substantial. To quote King Lear, “Nothing will come of nothing.” At this news, Shakespeare playfully feigned a dagger to the heart as his own words are thrust upon him.
4. Will decides against a CPT and learns later the strategy would have failed. There’s no cost and no benefit.

Thus, Pascal concluded, Shakespeare should make the wager. “At the risk of being overly dramatic, sir, my risk and reward analysis suggests a compelling reason to opt for a CPT, Q.E.D.”

Delighted at the clarification of his decision, Shakespeare raised his quill to his neighbor. “Wise Pascal, I realize now our doubts are traitors, and make us lose the good we oft might win, by fearing to attempt.” And quietly, to himself, the Bard thought, “Don’t kill all the lawyers yet – until I have my CPT.”