As a part of the tax changes enacted by Congress in late 2010, the concept of "portability" was introduced into the estate tax law. The implications of this change will be of interest to professionals, business owners and executives.  Careful consideration must be given to the results of estate plans that incorporate this change in the law.

Under portability, when the first spouse dies, his or her estate can elect to transfer any federal estate tax credit (currently equal to the tax on $5,000,000 but scheduled to fall to $1,000,000 under current law) of the deceased spouse to the surviving spouse. Portability permits one spouse to leave all of his or her property to the other spouse without the use of a credit shelter trust and still avoid tax on an amount equal to twice the credit at the second spouse’s death. Under prior law, most married persons with estates equal to the amount of the credit equivalent created a trust to hold the portion of their estate equal to the credit in order to avoid losing their credits. This trust, known as a credit shelter trust, does not qualify for the marital deduct and, thus, is not subject to federal estate tax in … Continue Reading