Portability of the estate tax exclusion in 2026
Portability lets a surviving spouse use the federal exclusion the first spouse did not need. It has to be elected on a timely Form 706, and only two states copy it. Enter the estate of the survivor and the unused amount received.
- Most a survivor can hold
- $30,000,000
- Election
- Timely Form 706
- Late relief
- 5 years
- States with portability
- Hawaii and Maryland
Federal estate tax for a death in 2026
$0
$1,000,000 of exclusion left unused.
| Estate plus lifetime gifts | $25,000,000 |
| Exclusion (basic plus DSUE) | $26,000,000 |
| Tentative tax | $9,945,800 |
| Credit | $10,345,800 |
| Federal estate tax | $0 |
| Year | Per person | Married couple with portability |
|---|---|---|
| 2026 | $15,000,000 | $30,000,000 |
| 2025 | $13,990,000 | $27,980,000 |
| 2024 | $13,610,000 | $27,220,000 |
Compiled by Radif Partners · How we calculate · figures read on the state revenue department, the statute and irs.gov · not legal or tax advice
When a married person dies, whatever passes to a spouse who is a US citizen is deducted, so the first estate usually uses little of its $15,000,000 exclusion. The unused part is the deceased spousal unused exclusion, or DSUE amount. Under section 2010(c) the executor can transfer it to the survivor, but only by filing a timely Form 706, due nine months after death plus a six-month extension, even when no return would otherwise be required. Executors who missed that date and were not required to file can still elect within 5 years of the death under Rev. Proc. 2022-32. A survivor who receives a full DSUE amount can shelter $30,000,000 in 2026: if the first spouse left $4,000,000 to the children, the DSUE amount is $11,000,000, and a second estate of $25,000,000 owes $0 instead of $4,000,000. The states are another matter. Only Hawaii and Maryland have portability of their own exemption; Illinois, New York and Washington reject it, and the other states publish no portability rule.
How the DSUE amount is figured
The DSUE amount is the smaller of the basic exclusion amount and the part of the first spouse's applicable exclusion that was not used against the taxable estate and lifetime taxable gifts (section 2010(c)(4)). Take a first spouse who dies in 2026 with $12,000,000, leaving $4,000,000 to the children and the rest to the surviving spouse. The $8,000,000 to the spouse is deducted, the $4,000,000 to the children is taxable, and that uses $4,000,000 of the $15,000,000 exclusion. The DSUE amount is $11,000,000, computed in Part VI of that Form 706 and carried to the survivor's own returns.
| Survivor’s estate | Tax with DSUE of $11,000,000 | Tax without the election |
|---|---|---|
| $16,000,000 | $0 | $400,000 |
| $20,000,000 | $0 | $2,000,000 |
| $25,000,000 | $0 | $4,000,000 |
| $30,000,000 | $1,600,000 | $6,000,000 |
| $40,000,000 | $5,600,000 | $10,000,000 |
The election: a timely Form 706
Portability is not automatic. The Form 706 instructions allow the executor to transfer the DSUE amount only on a return filed within nine months of the death, or before the end of the six-month extension obtained with Form 4768. This applies to estates far below the filing threshold: a couple worth $6,000,000 has no federal tax to worry about today, but the survivor may live for decades, and the estate may grow or the law may change. Estates that file only to elect portability can use simplified valuation for property passing to the spouse or to charity, as the IRS notes on its estate and gift tax news page.
The survivor’s federal tax with a DSUE amount
Federal estate tax for a death in 2026
$0
| Estate plus lifetime gifts | $25,000,000 |
| Exclusion (basic plus DSUE) | $26,000,000 |
| Tentative tax | $9,945,800 |
| Credit | $10,345,800 |
Missed the date: the 5-year relief
An executor who was not required to file, because the gross estate plus adjusted taxable gifts did not exceed the filing threshold, and who did not file in time, can still elect under Rev. Proc. 2022-32. The return must be filed on or before the fifth anniversary of the death and must say at the top: "Filed Pursuant to Rev. Proc. 2022-32 to Elect Portability under section 2010(c)(5)(A)." The relief does not help an estate that had to file anyway: if the gross estate was above the threshold, a late return cannot make the election, as the IRS estate tax questions explain.
Rules on using the DSUE amount
The survivor can use the DSUE amount for lifetime gifts as well as at death; when the survivor makes a taxable gift, the DSUE amount is applied before the survivor's own exclusion. Only the DSUE amount of the last deceased spouse counts. A survivor who remarries and outlives a second spouse loses the first spouse's amount once the second one dies, and amounts from several spouses cannot be added together at the same time, although gifts made between the deaths can use each in turn. When property passes to a noncitizen spouse in a qualified domestic trust, the DSUE amount stays provisional until the trust ends (noncitizen spouse).
Why file when there is no tax
The decision to elect is made at the first death, often by a grieving survivor with an estate well below any threshold, and it is easy to skip. The cost is a full Form 706 with values for the assets, although the simplified valuation helps for property going to the spouse. The benefit only appears at the second death, and only if the survivor's estate then exceeds the survivor's own exclusion. A survivor who receives $8,000,000 today, inherits from parents later and owns a business that grows can cross $15,000,000 long after the first death, when the election can no longer be made. The DSUE amount is computed once, on the return of the first spouse, and the survivor's estate is then measured against it years later. Executors weigh the cost of the return against that risk.
State portability: two out of thirteen
The federal election has no effect on state estate taxes. Each state decides whether its own exemption can pass to the survivor, and almost none allow it.
| Jurisdiction | Portability of the state exemption | 2026 exemption |
|---|---|---|
| Connecticut | No rule published | $15,000,000 |
| District of Columbia | No rule published | $4,988,400 |
| Hawaii | Yes | $5,490,000 |
| Illinois | No | $4,000,000 |
| Maine | No rule published | $7,160,000 |
| Maryland | Yes | $5,000,000 |
| Massachusetts | No rule published | $2,000,000 |
| Minnesota | No rule published | $3,000,000 |
| New York | No | $7,350,000 |
| Oregon | No rule published | $1,000,000 |
| Rhode Island | No rule published | $1,838,056 |
| Vermont | No rule published | $5,000,000 |
| Washington | No | $3,000,000 |
Maryland allows a Maryland DSUE amount, elected on a timely Maryland return of the first spouse and capped at $5,000,000, under Tax-General section 7-309. A Maryland widow dying in 2026 with $9,000,000 owes $0 to Maryland with a full Maryland DSUE amount, and $640,000 without it. Hawaii also allows portability, limited to its own exclusion of $5,490,000, as its Form M-6 instructions describe.
Everywhere else, a couple that leaves everything to the survivor keeps a single state exemption. In New York a widower with $9,000,000 owes $916,400 whatever DSUE amount he holds for federal purposes. This is why a credit shelter trust, which keeps the first spouse's state exemption outside the survivor's estate, is still common in those states. The comparison is on the page on married couples.