There are many aspects which a person must consider when designing an estate plan. One common concern that people have when making estate planning decisions is estate tax liability in Florida and in every other state. The law currently allows a spouse to gain his or her deceased spouse’s unused tax exemption amount through the portability election. However, one may not prefer to have a surviving spouse receive the unused exemption amount for one reason or another.
In this case the executor of the estate will have to make an affirmative statement when filing the estate tax return. The statement will signify that the executor is deciding to not apply the portability election. On the other hand, if an estate tax return is not filed in a timely manner this automatically signifies a decision to not make a portability election.
Therefore, it is important to understand who is supposed to make the election in a timely manner if one wishes a surviving spouse to receive the left over estate tax exemption amount. Currently, the law permits only the executor of the estate to file the tax return for the estate. This means only the executor can choose to apply the portability election. The surviving spouse cannot make this election unless he or she is the estate’s executor.
On the other hand, if there is no appointed executor, then a person who is in possession of the decedent’s property has the power to make the portability election on the estate tax return in Florida or in any other state. However, this person may or may not be the surviving spouse and this person may or may not be the person the decedent would have intended to make these decisions. Therefore, it is important for a decedent to appoint an executor of his or her choice while designing an estate plan.