IT was only a matter of time until this happened. Better to file than not to.
The Oklahoma Supreme Court recently upheld a ruling that has required the Personal Representative of an Estate to take the necessary steps to transfer the deceased spousal unused election (DSUE) to the surviving spouse. The case stems from the rights created by the federal gift and estate tax laws regarding portability. More specifically, beginning in 2010 one spouse was allowed to transfer, at death, his or her unused gift and estate tax exemption to the surviving spouse. Prior to 2010, each spouse had his or her own gift and estate tax exemption, but any portion of that exemption which remained unused by the spouse at death could not be transferred to the surviving spouse.
In In re Estate of Vose, 390 P.3d 238 (Okla. 2017), the Personal Representative of the Estate, one of the children of the decedent by a prior marriage, had refused to make the required election for transfer even though the surviving spouse agreed to pay the cost required to prepare the necessary Federal Estate tax return to do so.
The court rejected the personal representative’s argument regarding the surviving spouse’s standing, stating that effectively the right to portability of the DSUE was a beneficial interest in the estate for the surviving spouse, independent of the surviving spouse’s rights as an heir. This right to portability was an interest sufficient to give the surviving spouse standing to bring the claim.
Fiduciary Duty to Elect Portability | The National Law Review