Updated for 2025 | Duncan Legal, PC Estate Planning Education Series
For legally married couples, the portability provision is one of the most valuable estate-planning opportunities available today. Portability allows the surviving spouse to use any unused portion of the federal estate tax exemption from the spouse who passes away first. In practical terms, this strategy can allow a couple to protect nearly double the amount from federal estate tax at the second spouse’s passing.
At Duncan Legal, PC, we help families understand and use opportunities like portability to preserve what they’ve built and ensure assets pass efficiently and intentionally to 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 the full exemption, the remaining portion can be transferred to the survivor, allowing it to be used later.
Portability was originally introduced as part of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 and has remained a permanent feature of the federal tax code since January 1, 2011.
What Has Changed for 2025?
As of 2025, the federal estate and gift tax exemption is $13.99 million per person. When portability is elected, a married couple may be able to protect up to $27.98 million from federal estate tax.
There is also good news for surviving spouses when it comes to timing and filing requirements:
- The portability election is made by filing IRS Form 706, the federal estate tax return.
- In many circumstances, executors now have up to five years after the first spouse’s passing to file and elect portability—even if no return was originally required.
- Strategic planning may help secure advantages before possible future legislative changes reduce exemption amounts.
How Portability Works — A Simple Example
- One spouse passes away
- The executor files IRS Form 706 and elects portability
- Any unused exemption is transferred to the surviving spouse
- When the surviving spouse later passes, their estate can apply:
- Their own exemption ($13.99 million in 2025), plus
- The DSUE amount transferred from the first spouse
This approach may eliminate or dramatically reduce federal estate tax for many families who would otherwise owe substantial taxes.
Why Portability Matters
Portability can be incredibly powerful—but only if it is handled correctly.
Important considerations include:
- Portability is not automatic — the election must be filed to preserve the exemption.
- Portability does not replace trust planning — trusts may still be important for asset protection, blended-family needs, or planning around state-level taxation.
- State-level estate or inheritance taxes may still apply, depending on where you live or own property.
- Appreciation on inherited assets is not protected — a credit-shelter trust may be more advantageous when assets are expected to grow significantly.
- Remarriage may impact DSUE availability, making early planning critical.
What Married Couples Should Do Now
To ensure full access to the portability provision:
- Review your estate plan with a qualified estate planning attorney
- Confirm instructions regarding filing Form 706
- Maintain records, valuations, and supporting documentation
- Consider whether using a trust structure may enhance benefits
- Update your plan as laws and asset values evolve
Final Thought
Portability is more than a tax strategy—it’s a meaningful way to protect what you’ve built and provide lasting support for the people and causes you care about. For many families, it is one of the most practical and effective estate-planning tools available.
If you and your spouse have not reviewed your estate plan recently, 2025 is an ideal time. Being proactive ensures clarity, flexibility, and peace of mind for the future.
