Filing a Late Portability Election With Rev. Proc. 2023-10

Revenue Procedure 2022-32 from the Internal Revenue Service (IRS) offers a simplified method for certain estates to make a “portability election.” Portability allows a surviving spouse to use any of their deceased spouse’s unused federal estate and gift tax exemption. This exemption can be applied to the surviving spouse’s own taxable gifts or estate, potentially reducing or eliminating future tax liability. The procedure creates a path for estates that missed the original deadline to claim this benefit.

Who Qualifies for Relief

To be eligible for this simplified method, the decedent must have been a U.S. citizen or resident at the time of their death, which must have occurred after December 31, 2010. The decedent must also be survived by a spouse.

An executor must not be otherwise required to file a federal estate tax return, Form 706. This filing requirement is based on the total value of the decedent’s gross estate and adjusted taxable gifts. For example, for a decedent who died in 2025, a federal estate tax return is required only if the gross estate exceeds $13.99 million. This threshold changes annually, so executors must verify the specific amount for the year of death.

The final qualification is that the executor must not have filed a timely estate tax return to make the portability election. The standard deadline for filing Form 706 and making the election is nine months after the decedent’s death, with a possible six-month extension. Rev. Proc. 2022-32 is designed for those who missed this initial window.

Required Documentation and Information

The primary document for making a late portability election is Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return. Even though the estate’s value is below the normal filing threshold, a complete and properly prepared Form 706 must be submitted. Executors should use the correct version of the form for the decedent’s year of death, which is available on the IRS website.

The executor will need the decedent’s personal details, including their Social Security number and date of death. Similar information for the surviving spouse is also required. A comprehensive inventory and valuation of all assets in the decedent’s gross estate must be compiled as of the date of death, including real estate, bank accounts, investments, and personal property.

While the total value is below the filing threshold, this information is needed to accurately calculate the Deceased Spousal Unused Exclusion (DSUE) amount. The DSUE amount is determined by subtracting the value of the decedent’s taxable estate from the basic exclusion amount for the year of death. This computed DSUE amount must be shown on Part 6 of Form 706, which is dedicated to the portability election.

How to File for the Extension

Once the Form 706 is completed, the executor must write the statement “FILED PURSUANT TO REV. PROC. 2022-32” at the top of the form. This notation is mandatory and signals to the IRS that the late filing is being made under the specific relief provisions.

The completed and annotated Form 706 should be mailed to the IRS service center indicated in the form’s instructions. The correct address depends on the decedent’s state of residence. Once filed, if the form is accepted as complete and correct, the portability election is considered officially made.

When This Simplified Method Cannot Be Used

The most significant limitation of this relief is the five-year deadline from the decedent’s date of death. The completed Form 706 must be filed on or before this fifth anniversary. For instance, if a decedent passed away on April 1, 2021, the deadline to file under this simplified method would be April 1, 2026. If this five-year window has passed, the estate is no longer eligible to use the simplified method.

For estates that fall outside the five-year deadline, the alternative is to request a private letter ruling (PLR) from the IRS. A PLR is a formal, written determination from the IRS that applies tax law to a taxpayer’s specific set of facts. This process is initiated by submitting a formal request that details the situation and provides a legal basis for why relief should be granted.

Pursuing a PLR is a more complex and costly endeavor. The process requires specialized legal or tax professional assistance to prepare the detailed request, and the time required to receive a determination can be extensive. The IRS charges a significant user fee for a PLR request, which can be several thousand dollars. In contrast, a benefit of using the simplified method under Rev. Proc. 2022-32 is that it does not require any user fee.