The IRS has released guidance on the election for decedents dying after December 31, 2010, for a surviving spouse to use any unused estate and gift tax exclusion amounts (portability election). See Notice 2011-82. Because many married couples will want to ensure that the unused exemption amount of the first to die is available for the surviving spouse.

The election to move the unused exemption must be made on a timely filed Federal Estate Tax Return (Form 706). Timely filed means within nine months of the date of death, or if an extension is filed, within the following six months. The election essentially does away with the need for an A/B split that is needed in most estate planning to date.
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The guidance still does not dictate how the IRS will treat the election after the provisions of the extension sunset in 2013, though. Under the wording of the extension statute, all provisions related to the current estate tax (and arguably this portability option) will expire on December 31, 2012. Given the lack of this necessary guidance, it is still recommended to do the A/B split unless you want to gamble on Congress’s future actions.