The IRS issued temporary and proposed regulations providing guidance on the requirements for electing portability of a deceased spouse’s unused exclusion (DSUE) and the surviving spouse’s use of the DSUE amount.

One of the points clarified deals with those estates that are below the filing threshold and for the sole purpose of making the portability election. Under the temporary regulations, an executor does not have to report the value of certain property that qualifies for the marital or charitable deducation. The executor would have to provide the best estimate of the total gross estate and sign the return under penalties of perjury.

Also, another of the important points made is that if no estate tax return is required to be filed, failing to file a timely return will be considered an affirmative statement signifying the decsion not to make a portability election.