For legally married couples, the portability provision remains one of the most valuable estate-planning opportunities available. Portability allows the surviving spouse to use any unused portion of the federal estate tax exemption from the spouse who passed away first. In practical terms, this strategy can allow a couple to protect nearly double the amount from federal estate tax upon the second spouse’s passing.
At Axis Estate Planning, we help families take advantage of tools like portability to preserve what they have built and ensure their assets transfer efficiently and intentionally.
What Is Portability?
Portability enables a surviving spouse to apply the Deceased Spouse’s Unused Exclusion (DSUE) to their own federal estate tax exemption. If the first spouse to pass away does not use their full exemption, the remainder can be transferred to the surviving spouse, protecting those assets from federal estate taxation.
Portability was enacted under the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, becoming effective for married individuals dying on or after January 1, 2011. It has remained a permanent provision of the federal tax code ever since.
What Has Changed for 2025?
As of 2025, the federal estate and gift tax exemption is $13.99 million per person. For a married couple, the portability provision can nearly double that protection to $27.98 million—assuming the unused exemption from the first spouse is properly preserved.
Additionally, recent guidance makes electing portability easier than before:
- The election is made by filing IRS Form 706, the federal estate tax return.
- Executors may now file up to five years after the first spouse’s death under expanded relief options, even if the estate was not originally required to file Form 706.
- Planning early may help families secure substantial tax advantages before potential legislative changes reduce exemption amounts.
How Portability Works — A Simple Example
- One spouse passes away
- The executor files Form 706 and elects portability
- Any unused exemption is transferred to the surviving spouse
- Upon the surviving spouse’s passing, their estate can apply:
- Their own exemption ($13.99 million in 2025), plus
- The DSUE amount transferred from the first spouse
This strategy can eliminate or significantly reduce federal estate tax obligations for many families.
Why Portability Matters
Portability is powerful—but only when executed correctly.
Important considerations include:
- It is not automatic. The election must be filed in order to preserve the unused exemption.
- Portability does not replace trust planning. Certain trusts may still be important for state-level taxes, blended family planning, asset protection, and business succession.
- State estate or inheritance taxes may still apply. Portability applies only at the federal level.
- Asset appreciation is not protected. A credit-shelter trust may be preferable when assets are expected to grow substantially.
- Remarriage can impact access to DSUE, making early planning essential.
What Married Couples Should Do Now
To take full advantage of portability:
- Review your current estate plan with a qualified attorney
- Confirm instructions regarding filing Form 706 and electing portability
- Maintain records of valuations, financial documents, and tax filings
- Consider how trust strategies may enhance portability benefits
- Update planning documents regularly as laws and asset values change
Final Thought
Portability is more than a tax strategy—it is a way to preserve what you’ve worked hard to build and provide meaningful protection for your loved ones. For many families, it is one of the simplest and most effective opportunities to create stability, clarity, and peace of mind.
If you and your spouse haven’t reviewed your estate plan recently, 2025 is an ideal time to do so. Planning ahead ensures flexibility and confidence, no matter what the future holds.
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