By Fred Franke
The Law Office of Frederick R. Franke, Jr. LLC
As anticipated, a relatively new federal estate tax benefit has generated litigation among family members in the state courts. The “portability” election that permits a surviving spouse to carry forward the deceased spouse’s unused federal estate tax exclusion amount is a powerful tool for married couples with federal estate tax exposure.
A critical part of portability, however, is that it is an election to be made by the personal representative. In a second (or subsequent) marriage, the personal representative may not be the surviving spouse and (more to the point), the personal representative and the surviving spouse may not see eye-to-eye.