The provision allows a surviving spouse to claim any exemption not used by their deceased spouse on their own estate tax return. Since the exemption in 2011 was $5 million, a widow left with a $3 million estate owes no taxes. But then when the widow passes, the remaining $2 million can be added to the same $5 million ceiling. This means the widow’s estate is exempt for up to $7 million, according to Forbes.com.

This portability of estate exemption is simple compared to the tax maneuvers some estates attempt to avoid these taxes, and it was praised by tax lawyers upon signing. Unfortunately, the portability option concludes at the end of 2012, so it is only helpful to people who happen to lose a spouse in this calendar year.

In rare cases, someone who is terminally ill could use the portability option but even then it’s still guesswork. The new law also complicates taxes for the surviving spouse if he or she decides to remarry one day.

So, while the sentiment from Congress was well-received in the estate law community because it addresses one of that group’s significant concerns, the portability provision is almost unusable because it sunsets so quickly, according to Legalnews.com.

For now, the portability option will mean lots of paperwork for the IRS. As Congress’ new rules mean fewer estates have to pay taxes, the new law encourages more estates to file tax returns even if they don’t owe, according to Forbes.

So all surviving spouses this year have to file an estate tax return regardless of whether they owe or they lose the portability option forever. Estates have nine months to file an estate tax return and many miss that deadline.

Legislators could agree in 2012 to extend the portability provision in the estate tax law, or they could rewrite the whole thing. Forbes reported that the President has proposed bringing the estate tax laws back to where they were in 2009 when there was a $3.5 million exemption and a 45 percent tax rate.

Congress is notoriously unpredictable when it comes to drafting estate tax law. In late 2009, the U.S. Senate failed to vote on a bill that would have fixed a scheduled expiration of the tax. That meant there were no federal taxes on estates in 2010, according to Businessweek.com.

At the end of 2010, Congress passed the Tax Relief Unemployment Insurance Reauthorization and Job Creation Act. This is the law that brought the exemption to $5 million and introduces the portability option.

O. Reginald (“Reggie”) Osenton is the Owner and President of Osenton Law Offices, P.A. If you need a Brandon estate planning lawyer, Tampa estate planning lawyer, or Tampa probate attorney, call 813.654.5777 or visit Brandonlawoffice.com.

In most cases, the spouse of the deceased will be left with everything after all of the debts and taxes are paid. This changes the old Florida law that split the estate among the surviving spouse and the surviving children.

In the event that the deceased had children who are not descendants of the surviving spouse, they will now get half of the remaining estate, according to Florida law.

These rules could mean an increased number of lawsuits filed by family members who claim to know the intent of the deceased despite the lack of a will. Since the laws changed, wills that had not been amended since the new laws went into effect will come under closer scrutiny.

The two most significant changes to the law concern the change in the surviving spouse’s inheritance and the court’s ability to change a will if someone presents a case that the will does not represent the intent of the deceased.

If the deceased had no will, then the surviving spouse now will inherit the entire estate if all of the children belong to both the deceased and the surviving spouse. Previously, the surviving spouse would get $60,000 and the other monies would go to the rest of the estate. Portions of the old law continue to apply if there is a surviving child outside of that marriage.

The other significant change in Florida probate law that went into effect this year allows the court to change the will – even if it was unambiguous – if the interested party can prove the intent of the deceased was different from what was in the will.

This could potentially open the doors to many new lawsuits. The law change even says, “In determining the testator’s original intent, the court may consider evidence relevant to the testator’s intent even though the evidence contradicts an apparent plain meaning of the will.”

Probate in Florida includes paying the debt of the deceased as well as taxes and, in some cases, funeral expenses. This occurs before the family or other heirs receive their inheritance. Often this process takes as long as a year (or more) and is handled by Florida circuit courts.

An experienced attorney can help put together a will that serves the exact wishes of a client. But that will needs to be revisited annually to make sure that it is still up to date. In many cases, the attorney can develop an estate plan to minimize probate or avoid it entirely.

Brandon estate planning attorney Reginald Osenton has experience helping clients develop wills, trusts, living wills and power of attorney documentation. He also has experience in helping clients avoid probate, or in helping family members probate estates throughout Florida.

O. Reginald (“Reggie”) Osenton is the Owner and President of Osenton Law Offices, P.A. If you need a Brandon estate planning lawyer, Tampa estate planning lawyer, or Tampa estate planning attorney, call 813.654.5777 or visit Brandonlawoffice.com.