IRC §2010(c) allows the estate of a decedent who is survived by a spouse to make a portability election, which allows the surviving spouse to use the decedent spouse’s unused exclusion amount for transfers during life and at death. The portability election only applies to married individuals dying after 2010. One of the requirements for the portability election is that the executor of the estate of the first spouse to die must file a Form 706, even if the decedent spouse’s estate was less than the applicable exclusion amount. If the executor of the decedent spouse’s estate does not file a Form 706, then the unused exclusion amount of the decedent spouse will not transfer to the surviving spouse.
Generally, an executor has nine (9) months to file a Form 706 from the date of death of a decedent. The executor of an estate can request an automatic six (6) month extension of time to file by filing Form 4768. IRS Notice 2012-21 grants a six (6) month extension of time to file Form 706 until fifteen (15) months after the decedent’s date of death for decedents dying after 12/31/10 and before 7/1/11 if the executor failed to timely file Form 4768. In order to qualify for this extension, the executor must file a fully completed Form 4768 and the Form 706 within fifteen (15) months of the decedent’s date of death.