In estate planning, the concept of “portability” of a deceased spouse’s unused exclusion (DSUE) amount is relatively new. For decedents dying after December 31, 2010, if a first-to-die spouse has not fully used the estate tax exclusion, the DSUE amount can be transferred to the surviving spouse. This was originally passed as a two-year temporary provision until it was made permanent in the American Taxpayer Relief Act of 2012. Estate tax returns are usually required to be filed within 9 months of death to make the deceased spousal unused exclusion election. The IRS released Revenue Procedure 2014-18, providing an automatic extension for certain estates of decedents dying in 2011, 2012 and 2013 to elect portability. The extension applies to estates that would otherwise not have had a filing requirement, and allows the estates to file a return to elect portability until December 31, 2014. It includes the estates of same-sex decedents who were not eligible to elect portability until after the Windsor decision (United States v. Windsor recognized same-sex marriages for purposes of determining marital status of taxpayers under the Internal Revenue Code, the IRS has issued Revenue Procedure 2014-18 to grant limited relief for late elections).
This revenue procedure applies only […]