“DSUE” It or Lose It! Replacing the Portability Election Scheme with Mandatory Portability of the Deceased Spouse’s Unused Exclusion Amount

First, this comment will discuss the enactment of portability, as well as the applicable Internal Revenue Code and Treasury Regulation provisions that govern portability, including the requirements to make the election. Second, this comment will discuss the differences between a traditional estate plan versus a portability plan. Third, this comment will explore the current problems the surviving spouse faces under the current portability election scheme. And finally, this comment will propose not only to eliminate the portability election in favor of making portability of the DSUE amount mandatory but to also impose a new filing requirement for surviving spouses in order to compute the DSUE amount.