A married couple might want to take into consideration a very important aspect of the 2010 estate tax law. Under the law, each partner’s individual estate tax exemption of $5.12 million becomes “portable,” or it allows the first partner who passes away to transfer his or her individual estate tax exemption to his or her surviving spouse. The purpose of this provision is to ensure that the surviving spouse does not incur an estate tax on property that would normally be covered by the estate tax exemption. This provision operates with the martial estate tax exemption, which allows the first spouse to pass away to transfer his or her assets to the surviving spouse without incurring an estate tax. Because of this provision, the first spouse to pass away does not need to use the $5.12 million exemption.
However, if a couple wants to take advantage of the portability provision, the executor of the estate must file an estate tax return on the first spouse to pass away to preserve the exemption. Even if the estate is worth less than $5.12 million exemption, the executor might still want to file an estate tax return preserving the exemption just to be cautious. The surviving spouse might gain a windfall and, notwithstanding other facts, use the preserved exemption to pass that windfall to the heirs of the surviving spouse.
See Tax Report: Avoiding Estate-Tax Traps, Wall Street Journal, Aug. 7, 2012.
-Special Thanks to Brian J. Cohan for bringing this article to my attention.
