Using the new portability election of deceased spouses

Abstract

The United States has a unified system that taxes transfers of property during an individual’s lifetime (gifts) and property transferred as a result of the individual’s death. The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (the Act) contains a provision that will allow the unused portion of a decedent’s exclusion (taxable estate protected by the unified credit) to be used upon the subsequent death of the surviving spouse. The portability election is simple for situations where it appears the surviving spouse will not remarry, however, becomes much more complicated if the surviving spouse should remarry.