How the Portability Provision Can Double Your Federal Estate Tax Exemption

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3 minutes ago
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Updated for 2025 | An Estate Planning Insight from The Lansky Law Firm

For legally married couples, the portability provision may be one of the most powerful estate-planning tools available. Portability allows a surviving spouse to use any unused portion of the federal estate tax exemption from their spouse who passed away first. In real terms, it can allow a couple to protect nearly double the estate value from federal estate tax by the time the second spouse passes.

At The Lansky Law Firm, we work with families throughout the Memphis area and beyond to ensure that valuable planning opportunities like portability are not missed. Understanding how it works—and acting within the required timeframes—can preserve significant wealth for your loved ones.

What Is Portability?

Portability allows a surviving spouse to apply the Deceased Spouse’s Unused Exclusion (DSUE) to their own federal estate tax exemption. If the first spouse does not use all of their exemption, the remaining portion can be transferred to the survivor to use later.

Originally introduced under the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, portability became available for married individuals dying on or after January 1, 2011, and has remained a permanent part of the federal tax code.

What Has Changed for 2025?

As of 2025, the federal estate and gift tax exemption is $13.99 million per person. With portability, a married couple can potentially protect up to $27.98 million from federal estate tax—assuming proper planning and timely elections are made.

Recent updates also make portability more accessible:

The portability election is made by filing IRS Form 706, the federal estate tax return.
In many situations, executors can now file up to five years after the first spouse’s death, even if the estate wouldn’t otherwise need to file Form 706.
Surviving spouses may lock in tax advantages before potential federal changes reduce exemption levels.

These changes make it more important than ever to review existing plans.

How Portability Works — A Simple Example

One spouse passes away.
The executor files Form 706 and elects portability.
Any unused portion of the exemption is transferred to the surviving spouse.
When the surviving spouse later passes, their estate may apply:
- Their own exemption ($13.99 million in 2025), plus
- The transferred DSUE amount

This strategy can substantially reduce—or eliminate—federal estate tax that might otherwise be owed.

Why Portability Matters

Using portability correctly can greatly benefit surviving spouses and families, but several key issues must be considered:

The election is not automatic—it must be filed properly and within allowable timeframes.
Portability does not replace trust planning. Trusts may still be crucial for:
- Asset protection
- State-level tax planning
- Blended family planning
- Family-business succession
- Controlling how and when assets pass to beneficiaries
State estate or inheritance taxes may still apply, depending on location.
Portability does not protect appreciation, while credit shelter (bypass) trusts can.
Remarriage can affect DSUE access, increasing the importance of early planning.

What Married Couples Should Do Now

To ensure full access to the portability benefit, The Lansky Law Firm recommends:

Reviewing your estate plan with a qualified attorney
Confirming that executor instructions clearly include the portability election
Keeping organized records of asset valuations and tax filings
Considering whether trusts should be part of the strategy
Reviewing plans regularly as laws and asset values change

Final Thought

Portability is more than a tax regulation—it is a valuable way to protect what you have built and care for the people and causes that matter most. For many families, this provision offers one of the simplest and most powerful paths to preserve wealth and create peace of mind.

If you and your spouse haven’t reviewed your estate plan recently, 2025 is an ideal year to do so. Proactive planning now provides clarity, flexibility, and confidence for the future.