The DSUE Amount as an Estate Asset With Value

The enactment of portability is, perhaps, the most important recent change in the estate tax law. Under Section 2010(c), a dece­dent’s executor can elect on a time­ly filed estate tax return to transfer the deceased spousal unused exclusion (DSUE) amount (the unused unified credit) to the surviving spouse. Portability has dramatically altered modern estate planning for many clients, allowing them to avoid the use of non­ marital trusts in a substantial number of instances.

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Planning in the Post-Windsor World

The Supreme Court’s decision in Windsor v. Commissioner, 133 S.Ct. 2675 (June 26, 2013), striking down the federal definition of marriage that excluded same-sex marriages (Section 3 of the Defense of Marriage Act, or DOMA), and the IRS position in Revenue Ruling 2013-17, 2013-38 I.R.B. 201 (Sept. 16, 2013), validating for federal tax purposes any marriage that is valid in the state in which it was celebrated, have led to a number of estate planning issues.
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