As we prepare to move into the latter part of 2012, this Report will provide guidance on recent developments affecting estate and tax planning.
IRS Issues Temporary Regulations Governing Portability
Portability was introduced under the 2010 Tax Act which granted a surviving spouse the opportunity to use his or her deceased spouse’s unused Federal estate tax exemption. The benefit of “portability” is that if the first spouse to die fails to make full use of his or her exemption (currently $5 Million), the surviving spouse can inherit the deceased spouse’s unused exemption and add it to his or her own exemption, effectively ensuring the amount the couple can shelter from estate tax is $10 Million, or twice the Federal exemption. As this provision was to be effective for estates of decedents dying after 2010 and before 2013, its application in 2013 and later years is presently uncertain.
Temporary Regulations issued in June, 2012 require the estate of the first spouse to die to elect “portability” by filing a timely Federal estate tax return. The last timely filed return, including extensions, will control. If a decedent’s estate does not wish to make the portability election, the executor must make an affirmative statement to that effect on the estate tax return. Estates that must file an estate tax return are deemed to have not elected portability if they fail to file a timely return…
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