Estate Planning and Business Law

What is Portability?

Portability was added to the Job Creation Act of 2010 to allow the estate of a decedent who is survived by a spouse to make a “portability election” to allow the surviving spouse to apply the Deceased Spouse Unused to Exclusion (DSUE).

Portability requires the following:

  1. The decedent must be a U.S Citizen;
  2. The portability election must be made on IRS form 706 within 9 months of death;
  3. A completed estate tax return; and
  4. The unused exclusion amount can be applied only from the “last deceased spouse”.
  1. Descendent Must be a U.S Citizen:

There are exceptions to spouses who became U.S citizens after the passing of their spouses. Qualified Domestic Trust Persons also fall into exemptions to this regulation. [See prior blog on Qualified Domestic Trusts].

  1. Portability Election:

The decedent’s successor trustee or executor makes the decision to apply for a portability election. When there is no existing successor trustee or executor, anyone who has possession of the decedent’s property can elect to file the tax return.

  1. The Estate Tax Return Must be Complete and Properly Prepared

This estate tax return must be submitted when the estate is over the federal estate tax exemption amount which is $5.45 million this year. If the estate is under $5.45 million, the IRS may grant an extension in order to elect portability.

  1. Last deceased spouse provision

The surviving spouse must be the last spouse of the deceased.

If you wish to discuss your estate planning needs please contact the experienced attorneys of Blackwell, Santaella & Jahangiri, LLP, located in the tri-valley area of the east bay of California – San Ramon, Danville, Dublin and Pleasanton. Please note that we serve the entire bay area.

Categories: