When the IRS enacted the portability election provisions in 2011, which allowed estates of married taxpayers to pass along the unused part of their estate and gift tax exclusion amount to their surviving spouse, it remarked that it “expect[ed] that most estates of people who are married will want to make the portability election. . . .” But, to elect portability, an estate tax return must be filed in order to pass along the exclusion. So, what happens when an executor refuses to elect portability? Take them to court, of course.
In In the Matter of the Estate of Vose, the decedent and her spouse entered into an antenuptial agreement prior to their marriage, which provided:
6.1 Waiver: Except as otherwise specifically provided in this Agreement, [Spouse] and [Decedent] mutually waive, discharge, and release each other to the fullest extent lawfully