Instructions Address Portability Election

Journal of Accountancy, December 2012 | Go to article overview

Instructions Address Portability Election


The IRS posted revised instructions to Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return, with guidance for electing the portability of a deceased spouse's unused estate and gift tax exclusion amount. The instructions also address an executor's use of a check box to opt out of electing portability of the unused portion of the exclusion amount.

Under the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, EL. 111-312, a surviving spouse can increase his or her applicable exclusion amount by the amount of the unused exclusion amount of the deceased spouse (dying after 2010). As of this writing, this provision is scheduled to expire after 2012.

According to the instructions, the election is made by the executor of the deceased spouse's estate. Form 706 must be filed to make the election, and even estates that would not otherwise be required to file Form 706 (generally because of the size of the estate) must file to make the election. The instructions explain that if an estate intends to elect portability, timely filing (including extensions) a complete Form 706 is all that is required. The deceased spouse's unused exclusion must be computed on the return.

Executors of estates that are not required to file Form 706 under Sec. 6018(a) who are filing to elect portability of the deceased spouse's unused exclusion amount to the surviving spouse are not required to report the value of certain property eligible for the marital deduction or the charitable deduction. …

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