is portability of estate tax automatic
It is important to note, however, that portability is not automatic. In order for a surviving spouse to use a deceased spouseâs exemption, an election must be made by the executor of the deceased spouseâs estate on a timely filed estate tax return in respect of the deceased spouse.or example, a decedent from New York is entitled to a state estate tax exemption of $1 million. Since New York law currently does not provide for portability, the state exemption would be forfeited at the death of the first spouse if portability is relied on exclusively.