Portability of DSUE: Essentials of the Deceased Spousal Election

Use this guide to decide if you qualify to use portability of the deceased spousal unused exclusion (DSUE) in the United States 🇺🇸. The goal is to help a surviving spouse quickly assess eligibility, understand the rules for the “last deceased spouse,” avoid common mistakes, and take the right steps to claim the benefit.

Quick Eligibility Check: Do You Qualify to Use Portability (DSUE)?

Answer yes to all items below to qualify:

• The person whose DSUE you want to use is your spouse who died on or after January 1, 2011.
• The deceased spouse was a U.S. citizen or resident when they died.
• The executor of the deceased spouse’s estate filed a timely and complete estate tax return and made a portability election on Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return.
• You are applying the DSUE from your “last deceased spouse” as of the date you make a taxable gift or die.
• You’re using the DSUE only for gifts made after the DSUE arose (after the first spouse died and the election was made).

If any of these answers is no, you likely cannot use that spouse’s DSUE at this time.

Core Rules You Must Meet

• Date of death rule: The deceased spouse must have died after December 31, 2010.
• Citizenship/residency: The deceased spouse must have been a U.S. citizen or resident at death for this federal estate and gift tax benefit.
• Portability election requirement: The executor must file a timely and complete Form 706 and make the portability election. This election, once made, is irrevocable.
• Estate return even if small: Even if the estate was not otherwise required to file based on value, an estate tax return must be filed to calculate the DSUE and elect portability.
• Timing safe harbor: For estates not required to file based solely on size, a portability election can be made within five years from the date of death.
• Use order: When you make a taxable gift, the DSUE from your last deceased spouse is applied before your own exclusion.
• Last deceased spouse rule controls: You can only use DSUE from your last deceased spouse at the time of the gift. Remarriage does not block DSUE, but it can change who counts as your last deceased spouse later.

According to analysis by VisaVerge.com, these rules make DSUE a strong tool for many married families, but the benefit is lost without the on-time Form 706 election.

Understanding “Last Deceased Spouse” (This Drives Eligibility)

• Definition: “Last deceased spouse” means the most recently deceased person who was married to you when that person died.
• Timing: This identity is determined as of the date you make a taxable gift (or at your death).
• Election irrelevant to identity: It does not matter whether that last deceased spouse had any DSUE or whether their estate elected portability; the identity rule still applies.
• Remarriage effects: Remarriage does not prevent you from using DSUE. But if a later spouse dies before you and becomes your last deceased spouse, you can no longer use any remaining DSUE from the earlier spouse for new lifetime gifts.
• No stacking: You cannot combine DSUE amounts from multiple predeceased spouses at the same time. You can use DSUE amounts in succession if each spouse was your last deceased spouse at the relevant time and the elections were properly made.
• Remaining DSUE limited: Any remaining DSUE from an earlier spouse cannot be used for new lifetime gifts if that spouse is not your last deceased spouse on the gift date—even if the last deceased spouse had no DSUE or no portability election.

What DSUE Can Cover

• DSUE is added to your own applicable exclusion amount.
• You can apply DSUE to reduce or eliminate federal gift tax on lifetime gifts and estate tax at death.
• As of 2023, the federal estate tax exclusion amount is $12.92 million per person and $25.84 million for married couples. DSUE can increase what the survivor can transfer tax-free.

Tip: A donor may apply DSUE only to gifts made after the DSUE arose.

Filing Steps to Secure the DSUE

1. File a complete and timely Form 706 for the deceased spouse’s estate, with the portability election checked.
2. Do this even if the estate is small and otherwise not required to file.
3. For estates not required to file based on size, a portability election may be made within five years from the date of death.
4. Remember: The election is irrevocable once made.

Use the official IRS page for the current version and instructions: Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return.

Examples That Clarify Eligibility

• Example 1: Your spouse died in 2017. The executor filed a complete Form 706 and elected portability. In 2025, you make a taxable gift. You can apply the DSUE from your last deceased spouse (the 2017 decedent) first, then your own exclusion.
• Example 2: Your spouse died in 2017 and portability was elected. You later remarried in 2021. Your new spouse died in 2024, and no DSUE is available from that spouse. In 2025, you make a taxable gift. Because the 2024 spouse is your last deceased spouse, you cannot apply any remaining DSUE from the 2017 spouse to that gift.
• Example 3: You had two predeceased spouses, both with valid portability elections. You used the first spouse’s DSUE for gifts in earlier years. After the second spouse died and became your last deceased spouse, you may use the second spouse’s DSUE going forward. You cannot combine both DSUE amounts on the same transfer.

Disqualifying Factors and Common Pitfalls

• No portability election: If the executor did not file Form 706 and elect portability, you cannot claim DSUE from that spouse.
• Late or incomplete filing: An untimely or incomplete return can block DSUE.
• Wrong spouse for timing: If the spouse whose DSUE you want to use is not your last deceased spouse at the time of the gift, that DSUE cannot be applied to that gift.
• Applying DSUE to earlier gifts: You cannot use DSUE for gifts made before the DSUE existed.
• Attempting to stack DSUE: You cannot add DSUE from multiple predeceased spouses at once.

If You Don’t Qualify Right Now: Practical Paths

• Confirm who is your last deceased spouse on the date you plan a taxable gift; if you have remarried and outlived a later spouse, prior DSUE may not be available for new gifts.
• Check whether the deceased spouse’s executor still has time to file a portability election. If the estate wasn’t required to file based on size, the election may be made within five years of death.
• If there’s no valid portability election and the deadline has passed, you must rely on your own applicable exclusion amount for transfers.
• Consider the timing of gifts. Since DSUE is applied before your own exclusion, using DSUE on taxable gifts may help preserve your personal exclusion for later transfers.

How to Improve Your Chances of Using DSUE

• Act fast after a spouse’s death. Promptly engage the executor to prepare a timely and complete Form 706 with the portability election.
• Keep records of every portability election and any DSUE used on gifts.
• Plan the timing of lifetime gifts to match the last deceased spouse rule.
• Revisit plans after remarriage or the death of a later spouse, since that can change the last deceased spouse and your DSUE access.
• Coordinate with the executor even for small estates. A return is required to elect portability regardless of estate size.

What Portability Means for Real Families

Portability can spare a surviving spouse from complex trust planning by allowing the transfer of any unused exclusion from the deceased spouse. Many families who didn’t expect an estate tax filing because the estate was below the limit can still gain DSUE—if they file the return and make the election on time.

For couples with assets that may grow, DSUE gives the survivor more room to make lifetime gifts or plan for transfers at death without federal estate or gift tax. VisaVerge.com reports that the benefit can be meaningful even for estates near, but not above, the exclusion amount, because DSUE adds to what the survivor can transfer tax-free.

Important: The benefit is lost without an on-time, complete portability election on Form 706.

Frequently Clarified Points

• Remarriage alone does not cancel DSUE you already used. It can change who is your last deceased spouse for future gifts.
• If your last deceased spouse had zero DSUE or no election, you still must treat that person as your last deceased spouse for timing purposes.
• You cannot apply DSUE from an earlier spouse to a gift made when a different spouse is your last deceased spouse.
• The election is a one-time, irrevocable choice by the executor—once made, it stays in place.
• DSUE is a federal rule for estate and gift taxes; it’s separate from income tax issues.

Key Numbers and Terms to Keep in Mind

Action Plan

• If your spouse has died since 2010, confirm U.S. citizenship or residency at death.
• Work with the executor to file a timely and complete Form 706 electing portability, even if the estate is small. Use the official form here: Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return.
• Document the DSUE amount and track gifts that use it.
• Before making any taxable gift, confirm your last deceased spouse on that date.
• If you remarry, reassess DSUE planning after any change in your marital status.

With these steps, a surviving spouse can quickly tell if they qualify for portability, avoid common traps around the last deceased spouse rule, and secure the DSUE that federal law provides.