If you are administering an estate for the first spouse of a married couple to pass away in 2011 or 2012, you should consider whether or not to make a “portability election” under Section 2010(c)(5)(A) of the Internal Revenue Code.

Section 2010(c), as recently amended, generally allows a surviving spouse of a U.S. citizen decedent who passes away in 2011 or 2012 to use the decedent’s unused Federal estate tax exclusion amount in addition to the surviving spouse’s own basic Federal estate tax exclusion amount. This eliminates the need for spouses to re-title property and/or create trusts solely to take advantage of each spouse’s full basic Federal estate tax exclusion amount.

Under the current tax law, a person’s applicable Federal estate tax exclusion amount is the sum of (1) the basic Federal estate tax exclusion amount (currently, $5,000,000 minus any taxable lifetime gifts) and (2) in the case of a