An administrator of the estate must fulfill his or her duties.
Do these duties include filing for portability?
Are you the administrator of an estate?
Did the decedent have a surviving spouse?
According to a recent Justia article titled “In the matter of Estate of Vose,” 390 P.3d 238 (Okla. 2017), you are responsible for filing for portability for the surviving spouse.
The spouse of a decedent asked for an order from a trial court to make the administrator file for benefits from the portability election.
The court complied and gave an order for the administrator to file a federal estate tax return and elect portability of the Deceased Spousal Unused Exclusion (DSUE) according to federal estate and gift tax laws.
The administrator appealed.
He claimed the widow had no right to the portability benefit under the terms of a premarital agreement she had signed.
The State Supreme Court upheld the order of the trial court.
The portability rule allowing a surviving spouse to retain the unused estate and gift tax exemption has been in place since 2010.
The premarital agreement was signed in 2006.
Also, 26 U.S.C.A. § 2010 requires the administrator to make the election to allow portability of the DSUE for a surviving spouse and to act in the interest of the estate.
As a result, the court decided the portability was outside the scope of the premarital agreement.
What happens of the election is not made within the specified time limit?
The portability election is lost.
By the way, the administrator was her stepson and the son of the decedent.
Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.
For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.
Reference: Justia (January 17, 2017) “In the matter of Estate of Vose”