Election to be treated as domiciled in the UK

Where a married couple or civil partners consist of a UK domiciled individual (UK-dom) and a non-UK domiciled (non-dom) individual, there is a restriction on the amount that any transfers between them will benefit from the spouse exemption for inheritance tax (IHT). An election can be made to be treated as a UK-dom for IHT purposes.

Transfers for non-UK domiciled spouse

Any transfers between two UK spouses are exempt and will not be subject to IHT. Where there is a transfer from a UK-dom to a non-dom, there is a lifetime exemption of £325,000, i.e. the same amount as the nil rate band. If the limit is exceeded, IHT is charged on the excess.

Example

Kim (a UK-dom) is married to Jamal, whose domicile is the UAE. Kim dies suddenly in June 2017, leaving her estate of £1 million to Jamal in full. £325,000 is covered by the spouse exemption, and a further £325,000 is coved by her nil rate band (which is available in full). Assuming no IHT annual exemption is available, the remaining £350,000 will be liable to IHT at 40%.

Election

Since April 2013 it has been possible for a non-dom to make an irrevocable election to be treated as a UK-dom for IHT purposes. An election is effective from any specified date chosen by the elector. However, it can’t be backdated by more than seven years or to a date prior to 6 April 2013.

Death elections

The election can be made during the lifetime of the UK-dom spouse and up to two years after their death (and backdated accordingly). This means that estate planning can be undertaken at a time when the surviving non-dom spouse has a better idea of their intentions for the future.

Effect

An election removes the restriction on the inter-spouse exemption, and brings the couple into line with the treatment for UK-dom couples. As a cautionary note, this means any non-UK assets held by the non-dom will immediately be brought within the UK IHT net, and so a decision needs to be taken with great care.

Once an election is made the only way for its effect to be reversed is for the non-dom to leave the UK and be treated as non-UK resident for four successive tax years.

How do you make the claim?

While there is no standard claim form, you must notify HMRC in writing. A lifetime election can be made at any time during the UK-dom spouse’s lifetime, but can only be backdated for up to seven years. An election following the death of a UK-dom spouse must be made within two years.

Note. If the non-dom spouse is caught by the deemed domicile provisions, an election will not be needed as they will benefit from the unrestricted spouse exemption in any case. With effect from 6 April 2017 a person is deemed to be domiciled in the UK for tax purposes where they have been resident here for 15 or more years out of the previous 20.