Sidney Kess ()
When an employee dies, family members, co-workers and others may experience profound loss. For the family and the company, there are important tax considerations that arise. Here are some of the issues of note.
If a deceased employee was a participant in a company’s qualified retirement plan, benefits are paid to the designated beneficiary. This is usually a surviving spouse if there is one. If an employee had wanted benefits to be payable to someone other than a surviving spouse, the surviving spouse would have had to consent in writing to this arrangement (Code §§401(a)(11)(F) and 417(a)). The plan administrator should have a record of who was designated as the beneficiary or what happens if there is no such beneficiary (e.g., the beneficiary predeceased the employee).
The person inheriting retirement benefits is not immediately taxed on the inheritance (Code §102). However, when benefits are distributed to the beneficiary, they become taxable to the same extent that they would have been taxable to the employee.
A surviving spouse can roll over the benefits to his/her own account. This allows the surviving spouse to name his/her own beneficiary and to postpone required minimum distributions until age 701/2.
A non-spouse beneficiary may direct the trustee of the plan to transfer inherited funds directly to an IRA set up for this purpose. The account should be titled: [Beneficiary's name], a beneficiary of [employee's name]. While the non-spouse beneficiary must take distributions over his/her life expectancy (Table I in the appendices to IRS Publication 590-B), this avoids an immediate distribution of the entire inheritance. Generally, distributions must begin by the end of the year following the year of death. However, under a five-year rule, no distributions are required until the end of the fifth year following the year of death, at which time the entire account must be withdrawn.
If the deceased employee’s estate paid federal estate tax, then a beneficiary can claim a miscellaneous itemized deduction for the portion of this tax when benefits are included in his/her income (Code §691(c)). It is not subject to the 2 percent-of-adjusted-gross-income floor that applies to most miscellaneous itemized deductions; it is subject to the phase-out for high income taxpayers.
Under federal law, if the employer has 20 or more full- and part-time employees for at least half of the business days during the previous year and has a group health plan, COBRA coverage (a continuation of the company health plan) must be offered to a surviving spouse and a dependent child (Consolidated Omnibus Budget Reconciliation Act of 1985). A number of states have “mini-COBRA,” which requires the offer of continuing coverage by smaller firms.
The employer must notify the qualifying beneficiary (spouse/dependent child) within 14 days the plan received notice of the qualifying event (the death of the covered employee) about COBRA. This notice of election must spell out what it means and how to make it. What it means is that the qualifying beneficiary can continue the same or reduced coverage for up to 36 months. This election is voluntary, so if the spouse has access to better or less costly coverage elsewhere (e.g., through the Medicare for the spouse; through the children’s health insurance program (CHIP)for the child), making the election may not be advisable. The qualifying beneficiary must pay the cost of coverage, plus an administrative fee up to 2 percent (unless the company voluntarily pays for some or all of this coverage).
COBRA does not apply to:
• Health savings accounts (HSAs) (discussed later), even though coverage under a company’s high-deductible health plan (HDHP) is subject to COBRA
• Disability insurance for short-term or long-term disability
• Long-term care insurance
Insurance on the life of an employee is payable at death to the beneficiary of the policy. Depending on the type of coverage, this may be the surviving spouse, the company, or anyone else. As a general rule, the receipt of insurance proceeds payable on account of the death of the insured is tax-free (Code §101).
Group-term life insurance. Typically proceeds are payable to the surviving spouse or the employee’s child. If the employee has not designated a beneficiary, proceeds are payable according to state law. In order of precedence, this is usually a current spouse, but if there is none, then to children or descendants. If none, then to parents, and then to the employee’s estate.
Key person insurance. This is coverage owned by the company and is designed to provide a financial backstop needed during a replacement period for the deceased employee.
Insurance under buy-sell agreements. If the deceased employee is an owner and there is a buy-sell agreement that has been funded by life insurance, the proceeds are paid out to the company if the company owned the policy (an entity purchase buy-sell agreement), or to co-owners if they owned the policy (a cross purchase buy-sell agreement).
If an employee dies because of a work-related injury or illness, a death benefit is payable to eligible dependents (usually a surviving spouse and minor children, but to others if there is no spouse or minor child). The receipt of these benefits is tax-free (Code §104(a)(1)).
The amount of the benefit varies from state to state. For example, in New York the death benefit is two-thirds of the deceased spouse’s average weekly wage for the year before the accident (but not more than a maximum amount adjusted annually), or less if there is no surviving spouse, children, grandchildren, grandparents, siblings, parents, or grandparents. In addition, there may be a payment for funeral expenses.
When there is a work-related death covered by workers’ compensation, this usually becomes the sole remedy against the employer. However, an action against the employer may not be barred in some situations (e.g., death because of toxic substances, defective products, intentional actions by the employer).
If the deceased employee had been contributing to a flexible spending account for health care or dependent care costs, contributions cease at death. The executor can continue to submit claims for reimbursement for eligible expenses incurred before death; these reimbursements are tax-free. The plan administrator can provide details about the deadline for these submissions.
Restricted Stock and Options
What happens to restricted stock and stock options when an employee dies varies greatly from company to company. Unvested grants may vest upon death. For example, the terms of a stock option plan may immediately vest any unvested grant, allowing the estate of the deceased employee to exercise the options within a set period.
Nonqualified stock options become part of the deceased employee’s estate. If the executor exercises them, income is taxable to the estate (Form 1099-MISC is issued to the estate). There is no withholding required. Similarly, any restricted stock released to the estate becomes taxable to it (assuming that the employee did not make a §83(b) election); there is no withholding required.
In addition to what the law requires, some companies may offer families of deceased employees special benefits. For example, Google pays 50 percent of a deceased employee’s salary to a surviving spouse or domestic partner for 10 years. The company also pays each dependent child a monthly amount until age 19, or 23 if a full-time student.
Families must present death certificates to the company in order to receive any employment-related benefits on behalf of the deceased employee. They should also work with the company to undo other entanglements, such as company credit cards and company vehicles.