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Planning · Wealth Transfer & Gifting

Crummey Powers: Withdrawal Rights and the Annual Exclusion

The annual exclusion covers only gifts a recipient can use now.

Does a gift to a trust qualify for the annual gift-tax exclusion?

Only if a beneficiary receives a present interest. The annual exclusion, $19,000 per recipient for 2026 (Rev. Proc. 2025-32), does not apply to “gifts of future interests in property” (IRC § 2503(b)), and a gift held in trust for later distribution is usually a future interest. A trust can still qualify if each beneficiary has an immediate right to withdraw his or her share of the gift for a limited time.

Each beneficiary with a present interest is treated as a separate recipient (Instructions for Form 709), so a 2026 gift to a trust can use up to $19,000 of exclusion for each beneficiary who holds such a right.

The present-interest rule

The regulations define the two terms (Treas. Reg. § 25.2503-3):

  • A present interest is “an unrestricted right to the immediate use, possession, or enjoyment of property or the income from property.”
  • A future interest includes remainders and other interests “limited to commence in use, possession, or enjoyment at some future date or time,” whether vested or contingent.

The regulation’s examples show how easily a trust gift fails. If the trustee may withhold income and add it to principal, the beneficiary’s income right “is not a present interest.” If the trustee decides how to divide income among several beneficiaries, no exclusion is allowed because no one beneficiary’s share can be ascertained. Both features are common in family trusts.

A gift that misses the exclusion is still permitted. It is a taxable gift that must be reported and that reduces the donor’s lifetime exemption. The annual-exclusion page covers the exclusion itself.

Why a withdrawal right creates a present interest

The answer came from the courts, and the technique takes its name from Crummey v. Commissioner, 397 F.2d 82 (9th Cir. 1968). The principle, as the IRS states it in its own rulings, is that “if the beneficiaries are given the power to demand immediate possession and enjoyment of corpus or income, they have a present interest,” citing Crummey and Rev. Rul. 73-405, 1973-2 C.B. 321 (Priv. Ltr. Rul. 199912016, a non-precedential ruling quoted here for the IRS’s description of the law).

The right must be a real legal right to take the property, and the IRS also looks at the circumstances in which the gift was made. In practice the beneficiary lets the right expire and the contribution stays in the trust.

The mechanism in one line: the donor makes a gift to the trust; each beneficiary may withdraw a share for a limited window; the unexercised right expires; the donor claims the annual exclusion for each beneficiary who held the right.

What makes the right real

A withdrawal right on paper is not enough. The IRS position is that it “does not qualify a transfer to the trust as a present interest eligible for the annual exclusion, unless the beneficiary has notice of the withdrawal right and a reasonable opportunity to exercise the power” (Rev. Rul. 81-7, 1981-1 C.B. 474, as described in Priv. Ltr. Rul. 199912016). The private letter ruling itself reaches its conclusion only on the assumption that there is “no understanding or agreement, express or implied, that the withdrawal right will not be exercised”; that is the letter ruling’s own caveat, and a letter ruling is not precedent.

The notice that satisfies the first condition is covered separately, with the elements a notice contains and the IRS’s audit posture, on the Crummey letters page.

Beneficiaries with only a contingent interest

A recurring question is whether a withdrawal right counts when its holder has no other current stake in the trust, only a chance of taking later. In Estate of Cristofani v. Commissioner, 97 T.C. 74 (1991), the Tax Court allowed exclusions for such beneficiaries. The IRS acquiesced “in result” only, describing the issue as whether transfers to a trust “whose contingent remainder beneficiaries have the right to withdraw” an amount up to the exclusion within 15 days are gifts of present interests (Internal Revenue Bulletin 1996-29). In the IRS’s terminology, acquiescence in result only signals “disagreement or concern” with some or all of the court’s reasoning.

The acquiescence notice does not say more than that. It leaves open how the IRS treats withdrawal rights given to people who otherwise have little or nothing to gain from the trust.

The lapse problem and the five-or-five limit

The withdrawal right solves the donor’s problem and creates one for the beneficiary. A right to take trust property for oneself is a general power of appointment, defined as a power “exercisable in favor of the individual possessing the power” (IRC § 2514(c)). Releasing such a power is treated as a transfer of property by the person who held it (§ 2514(b)), and letting it lapse is treated as a release (§ 2514(e)).

The statute then limits that rule. A lapse during a calendar year counts as a release only to the extent the property that could have been withdrawn exceeds the greater of:

  • $5,000, or
  • 5 percent of the value of the assets out of which the lapsed power could have been satisfied.

The regulation gives its own example: a beneficiary with a non-cumulative right to withdraw $10,000 a year makes no gift by letting it lapse if the fund is worth $200,000 or more; if the fund is worth only $100,000, the lapse is a gift “to the extent of $5,000” (Treas. Reg. § 25.2514-3(c)(4)). The $5,000 figure is fixed in the statute and is not indexed for inflation.

The gap between the two limits is the planning difficulty. The table applies the statute to a hypothetical withdrawal right equal to the full 2026 annual exclusion of $19,000.

Trust assets at lapse (hypothetical)Protected amount (greater of $5,000 or 5%)Lapse treated as a release
$100,000$5,000$14,000
$200,000$10,000$9,000
$380,000$19,000$0

The estate tax has a matching rule. A lapse above the same five-or-five threshold is treated as a release of a general power for estate-tax purposes (IRC § 2041(b)(2)), which can bring trust property into the beneficiary’s own estate. And a beneficiary who dies while a withdrawal right is still open holds a general power over that amount at death (§ 2041(a)(2)).

Hanging powers

Drafters respond to the gap in one of two ways. The first is to cap each beneficiary’s withdrawal right at the five-or-five amount, which keeps the lapse harmless but can leave part of the donor’s exclusion unused.

The second is a “hanging” power. The beneficiary receives a withdrawal right for the full gift, but the trust provides that the right lapses each year only up to the five-or-five amount. The remainder continues, or hangs, into later years and lapses as the limit allows. The design follows the wording of § 2514(e), which measures lapses “during any calendar year.”

A hanging power is a drafting technique, not a term the Code or regulations define. Its cost is that the beneficiary keeps a live withdrawal right, with the estate-tax exposure described above, until the unlapsed balance runs out. Whether and how to use one is a question for the attorney drafting the trust.

Reporting

  • When the power works. A gift fully covered by the annual exclusion is not, by itself, a reason to file a gift-tax return (IRC § 6019). A return can still be required for other reasons, including gift-splitting.
  • When it does not. A future-interest gift must be reported whatever its size. The Form 709 instructions state that future interests “are not subject to the $19,000 annual exclusion and you must file Form 709 even if the gift was under $19,000.” That sentence is from the instructions for 2025 gifts, the latest published; the exclusion is also $19,000 for 2026.
  • The beneficiary’s side. A lapse above the five-or-five amount is treated as a transfer by the beneficiary, which can be a reportable gift from the beneficiary to the others who benefit from the trust.
  • Generation-skipping transfers. For a trust that benefits grandchildren, qualifying for the gift-tax annual exclusion does not settle the generation-skipping tax. A transfer to a trust for one individual gets the matching treatment only if no one other than that individual can receive trust income or principal during the individual’s life and, if the trust has not ended when the individual dies, its assets will be included in the individual’s estate (IRC § 2642(c)(2)).

The return itself is covered on the Form 709 page. For gifts to children, compare the withdrawal-power trust with a custodial account or a § 2503(c) trust on the gifts-to-minors page.

Sources

Methodology & sources

Primary sources are cited in place: IRC § 2503(b), § 2514, § 2041, § 2642(c), and § 6019 (U.S. House Office of the Law Revision Counsel); Treas. Reg. §§ 25.2503-3 and 25.2514-3 (eCFR); the IRS Instructions for Form 709; and the acquiescence notice for Estate of Cristofani in Internal Revenue Bulletin 1996-29. Crummey v. Commissioner and Estate of Cristofani are cited by their official reporters without a link. Revenue Rulings 73-405 and 81-7 appear in Cumulative Bulletins the IRS does not host online; they are cited by Cumulative Bulletin page and described as the IRS describes them in Private Letter Ruling 199912016, which is linked. A private letter ruling is not precedent and is used here only for that description. The $19,000 annual exclusion is the 2026 amount from Rev. Proc. 2025-32. The table is a hypothetical computed from the statute. See our editorial standards.

This information is educational and is not legal or tax advice. Withdrawal powers are created by the trust document and must be drafted and administered for the specific trust; confirm the details with a qualified estate-planning attorney.

Last verified November 13, 2026.

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