The following was written by Luke Lantta of Bryan Cave’s fiduciary litigation team and originally posted here.
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 executorrefuses to elect portability? Take them to court, of course.