What is a spousal bypass trust?

Published  14 January 2025
   6 min read

A spousal bypass trust is a discretionary trust where an individual can place their lump sum death benefits. It is sometimes called a flexible trust.

Important Information

In her Autumn 2024 Budget statement, Rachel Reeves announced the government’s intention to bring unused pension funds and death benefits within the value of an individual’s estate for inheritance tax purposes from 6 April 2027.

More detail can be found in our article Inheritance tax on pension death benefits from April 2027.

The following article is correct based on the current legislation and takes no account of the government’s proposed changes

Key facts

  • A spousal bypass trust is a discretionary trust where an individual can place their lump sum death benefits.
  • For more complex family circumstances where a simple nomination or expression of wish does not cover the situation.
  • The individual sets up the trust and nominates the trust as their preferred recipient of the death benefits.
  • Pension lump sums paid to a bypass trust will suffer a 45% tax charge if the pension scheme member dies after age 75.
  • The 45% tax charge can be used to offset the tax due on any payments from the trust.

A bypass trust is a term used to describe a discretionary trust which can be set up to receive a pension lump sum death benefit, with the surviving spouse as one of the beneficiaries.

One of the uses of these trusts is stop the death benefits falling into the surviving spouse’s estate. It allows the death benefits to pass to the next generation inheritance tax (IHT) free, while still allowing the spouse to make withdrawals from the trust.

Why are spousal bypass trusts used?

For more complex family circumstances where a simple nomination or expression of wish cannot achieve the desired outcome or if a payment may cause IHT issues if it is paid direct to a beneficiary.

To avoid or reduce the IHT on the survivor’s estate, though this has become much less common since pension freedoms came in April 2015, as flexi access drawdown benefits can be passed on to anyone IHT free. However, some older plans may not offer this flexibility.

Some pension plans such as Section 32 plans or retirement annuity contracts may not be written under trust.  A spousal bypass trust can be used to make sure any lump sum death benefits do not fall into the individual’s estate. 

When could a spousal bypass trust be used?

  • to place any lump sum death benefits not already under trust in a trust
  • to give control over who receives the benefits
  • to control the way benefits are taken
  • to pay care home fees
  • for children under 18

How is a trust set up?

  • The individual chooses the trustees, the spouse will normally be one.
  • The individual sets up the trust and then nominates the trust as their preferred recipient of the death benefits.
  • The trust names the beneficiaries. As it’s a discretionary trust, the trustees have the power to decide who the beneficiaries ultimately will be, but as they’re appointed by the individual, they should be closer to knowing the individual’s wishes on death and their circumstances at the time.

Most providers provide specimen forms that you can use. However, it's essential that you speak to a trust expert when setting up a trust to ensure that it does exactly what you intend it to do. By the time the benefits are to be paid to the trust it is too late to fix any errors.

How are the death benefits paid to the trust?

Generally, pension scheme trustees or administrators have discretion as to who pension death benefit are paid. An individual can tell the scheme administrator/trustees, by completing a nomination form, who they’d like to receive the death benefits. If they want the lump death benefits to be paid to the trust, they will name the trust on the form (although some providers may have a special section on their form to cater for this).

How is a spousal bypass trust taxed?

Pension lump sum death benefits paid to a bypass trust will suffer a 45% tax charge if the pension scheme member dies after age 75. Before age 75 it will be paid tax-free if the deceased has enough remaining lump sum and death benefit allowance. Benefits over the remaining allowance will be taxed at the basic rate of income tax.

When income payments are made to the beneficiaries from the bypass trust, these will be subject to the normal rules in relation to taxation of income payments from a discretionary trust. 

A periodic inheritance tax charge may arise on each 10-year anniversary of the creation of the trust.

The calculation of the periodic charge is complex, but the effective rate of IHT will never be more than 6%, based on current tax rates.

The exit charge arises when capital leaves the trust and is advanced to a beneficiary. Again, based on the rates referred to, it can never be more than 6%.

The 10-year anniversary date for inheritance tax periodic charges may be different depending on the structure of the pension.

  • Trust based – date the individual joined the pension scheme
  • Contract based – date the payment to the trust or the date any benefits had been assigned to a trust.

Things to consider when setting up a spousal bypass trust

Individuals considering a bypass trust will need to balance the advantage of extra control and flexibility, against the potential 45% tax charge which applies to the lump sum paid to the bypass trust if the individual dies after age 75, and the cost of the ongoing trust tax.

This can be a complicated area of trust and IHT law and specialist advice should always be taken.

So, although since April 2015 death benefits from a plan written under a trust are outside the individual’s estate for IHT purposes and can be passed through generations, for most clients, death benefit freedoms can give enough flexibility, but for those who wish more control or with more complex situations a trust may provide extra comfort for the individual.

Disclaimer

The information provided is based on our current understanding of the relevant legislation and regulations and may be subject to alteration as a result of changes in legislation or practice. Also it may not reflect the options available under a specific product which may not be as wide as legislations and regulations allow.

All references to taxation are based on our understanding of current taxation law and practice and may be affected by future changes in legislation and the individual circumstances of the investor.