IRS Simplifies Method for Obtaining an Extension of Time to Make a Portability Election for Federal Estate Tax Purposes

July 26, 2022 Advisory

On July 8, 2022, the IRS issued Revenue Procedure 2022-32 which provides a simplified way for certain estates to obtain an extension of time to make a “portability election”. Each individual is allowed to pass a certain amount of property to non-spousal and non-charitable beneficiaries without triggering the federal estate tax. For estates of decedents dying in 2022, this exemption amount totals $12,060,000. If a person leaves his or her entire estate to his or her spouse, the exemption amount is unused because any amounts passing to a surviving spouse are not subject to estate tax due to the “unlimited marital deduction”. By making a timely “portability election”, the deceased spouse’s unused exemption (DSUE) amount becomes available in the Estate of the surviving spouse, thereby allowing the survivor to pass up to $24,120,000 (in 2022) to non-spousal and non-charitable beneficiaries (e.g., children and grandchildren) without triggering the federal estate tax.

Revenue Procedure 2022-32 applies to estates where:

  • the decedent died after Dec. 31, 2010;
  • the decedent was survived by a spouse;
  • the decedent was a citizen or resident of the United States on the date of death; and
  • the estate is not required to file an estate tax return based on the value of the gross estate, and the executor did not file an estate tax return within the time required under the Treasury regulations. 

To receive the extension of time to make the portability election:

  • a complete and properly prepared IRS Form 706 must be filed on or before the fifth anniversary of the decedent’s death; and
  • across the top of the IRS Form 706 it must state that the return is “FILED PURSUANT TO REV. PROC. 2022-32 TO ELECT PORTABILITY UNDER § 2010(c)(5)(A).”

On Dec. 31, 2025, the current rules governing the federal estate tax exemption are set to expire. Unless a future Congress and president extend the current rules past that date, the federal estate tax exemption amount will revert to the level it was at in 2017 adjusted for inflation (estimated to be between $6.2 million and $6.5 million per individual). The potential reduction of a surviving spouse’s federal estate tax exemption makes electing portability all the more important. Surviving spouses should review their estate planning documents with their attorneys and discuss the portability election as a way to maximize the amount that may pass free of federal estate tax in their estates.

If you have questions or would like additional information, please contact your personal AT attorney or one of the authors listed below.

Contact Us
  • Worldwide
  • Boston, MA
  • Chicago, IL
  • Denver, CO
  • Dublin, Ireland
  • Edwardsville, IL
  • Jefferson City, MO
  • Kansas City, MO
  • Las Vegas, NV
  • London, England
  • Miami, FL
  • New York, NY
  • Orange County, CA
  • Philadelphia, PA
  • Princeton, NJ
  • Salt Lake City, UT
  • St. Louis, MO
  • Washington, D.C.
  • Wilmington, DE
abstract image of world map
Boston, MA
800 Boylston St.
30th Floor
Boston, MA 02199
Google Maps
Boston, Massachusetts
Chicago, IL
100 North Riverside Plaza
Suite 1500
Chicago, IL 60606-1520
Google Maps
Chicago, Illinois
Denver, CO
4643 S. Ulster St.
Suite 800
Denver, CO 80237
Google Maps
Denver, Colorado
Dublin, Ireland
Fitzwilliam Hall, Fitzwilliam Place
Dublin 2, Ireland
Google Maps
Edwardsville, IL
115 N. Second St.
Edwardsville, IL 62025
Google Maps
Edwardsville, Illinois
Jefferson City, MO
101 E. High St.
First Floor
Jefferson City, MO 65101
Google Maps
Jefferson City, Missouri
Kansas City, MO
2345 Grand Blvd.
Suite 1500
Kansas City, MO 64108
Google Maps
Kansas City, Missouri
Las Vegas, NV
7160 Rafael Rivera Way
Suite 320
Las Vegas, NV 89113
Google Maps
Las Vegas, Nevada
London, England
Royal College of Surgeons of England
38-43 Lincoln’s Inn Fields
London, WC2A 3PE
Google Maps
Miami, FL
355 Alhambra Circle
Suite 1200
Coral Gables, FL 33134
Google Maps
Photo of Miami, Florida
New York, NY
7 Times Square, 44th Floor
New York, NY 10036
Google Maps
New York City skyline
Orange County, CA
19800 MacArthur Boulevard
Suite 300
Irvine, CA 92612
Google Maps
Philadelphia, PA
2005 Market Street
29th Floor, One Commerce Square
Philadelphia, PA 19103
Google Maps
Philadelphia, Pennsylvania
Princeton, NJ
100 Overlook Center
Second Floor
Princeton, NJ 08540
Google Maps
Princeton, New Jersey
Salt Lake City, UT
222 South Main St.
Suite 1830
Salt Lake City, UT 84101
Google Maps
Salt Lake City, Utah
St. Louis, MO
7700 Forsyth Blvd.
Suite 1800
St. Louis, MO 63105
Google Maps
St. Louis, Missouri
Washington, D.C.
1717 Pennsylvania Avenue NW
Suite 400
Washington, DC 20006
Google Maps
Photo of Washington, D.C. with the Capitol in the foreground and Washington Monument in the background.
Wilmington, DE
1007 North Market Street
Wilmington, DE 19801
Google Maps
Wilmington, Delaware