Probate & Trust Law Section Conference Manual ... - Minnesota CLE

10. Will States Respect Portability?
There is no guarantee that states imposing their own wealth transfer taxes would follow
Congress’s lead and provide for portability of unused state tax exemptions. That is why at least
one commentator suggests, at a minimum, placing assets equal to the state estate tax
exemption amount into a credit shelter trust and using the portability election for the balance
of the first deceased spouse’s estate. 32 This would fully utilize the first deceased spouse’s state
exemption amount in the event the state does not provide for portability.
12. Lingering Questions
Some practitioners have identified questions that planners (and clients) will have to
consider now that the portability election is in play.
To what extent should a testator’s will address the portability election, if at all?
Should a testator’s will be drafted to require the executor to make the election
or to consult with the surviving spouse? Should the estate incur the cost of the
election if an estate tax return is not otherwise required? Can a premarital
agreement require the election? What happens if the executor fails to make the
election? 33
32 See Jeffrey Pennell, Marital Deduction in Uncertain Times, ALI‐ABA Planning Techniques for Large Estates 420
(May, 2011).
33 Ansley C. Cella& John R. Cella, Jr.,NCBA The Will & the Way,March 2011 (copy on file with the author).
32