Portability of the estate tax exemption is a federal tax provision that benefits married couples by allowing the surviving spouse to inherit the unused estate tax exemption of the deceased spouse. This means if the first spouse to die does not fully use their exemption amount, the unused portion can be added to the surviving spouse’s exemption, potentially increasing the estate value that can be transferred without triggering federal estate taxes.
The concept was introduced under the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 and became a permanent feature after the American Taxpayer Relief Act of 2012. Prior to portability, married couples often relied heavily on advanced estate planning strategies, such as bypass trusts or credit shelter trusts, to maximize exemptions and minimize taxes. Portability simplified these requirements by providing a direct way to transfer unused federal estate tax exemptions without complex legal arrangements.
As of 2024, the federal estate tax exemption is $12.92 million per individual, indexed annually for inflation. For example, if the first spouse passes away owning $8 million, less than the $12.92 million exemption, they use only part of their exemption. The remaining $4.92 million can then be carried over to the surviving spouse, allowing a combined exemption that potentially protects up to $17.84 million from estate tax.
Key eligibility criteria for portability include:
- The couple must be legally married at the time of the first spouse’s death.
- The executor of the deceased spouse’s estate must file IRS Form 706 (Federal Estate Tax Return) within nine months of the death to elect portability, even if no estate tax is owed.
- Portability only transfers the unused portion of the federal estate tax exemption and does not impact other deductions or credits.
It is important to note that portability does not apply automatically; it requires the proper election on Form 706. Missing the filing deadline forfeits the right to transfer the unused exemption. Furthermore, portability applies solely to federal estate tax exemptions and does not affect state estate or inheritance taxes, which vary by state and have separate rules.
To maximize the benefits of portability, consider the following strategies:
- File Form 706 accurately and on time to elect portability.
- Evaluate whether using portability or other estate planning tools like trusts better fits your estate size and goals.
- Keep abreast of annual changes in the federal estate tax exemption.
- Consult with an experienced estate planning attorney or financial advisor to tailor the best approach for your family.
Common misconceptions include believing that portability is automatic, applies to single individuals, or covers state taxes—none of which are true. It’s essential to understand these distinctions to avoid costly errors.
For further reading, see our glossary entries on Federal Estate Tax and Form 706, which detail important aspects of filing and estate tax procedures.
For authoritative information, visit the IRS page on Estate Tax – Portability of a Deceased Spouse’s Exclusion.
Portability is a practical estate planning feature that simplifies tax saving for married couples, but it requires timely action and proper filing to ensure maximum benefits.