Is Your Estate Plan a Ticking Time Bomb?

Why Married Couples Should Revisit Their Pre-2013 Documents

A Big Change in Estate Taxes

Estate tax laws have shifted again. As of 2026, each person will be able to leave up to $15 million to heirs without paying federal estate tax—$30 million for a married couple. These amounts will also increase each year with inflation.

That’s a huge benefit, but it also means that many older estate plans—written when exemptions were much lower—may no longer work the way you intended. What once seemed like smart tax planning may now create unnecessary complexity or even higher taxes later.

Portability: A Simplified Tool for Couples

The IRS now allows something called “portability.”

• If the first spouse dies and doesn’t use up all of their estate tax exemption, the surviving spouse can inherit that unused amount.

• In practice, that means a couple can combine exemptions—up to $30 million starting in 2026—without needing complicated trust structures.

This simplifies planning for many couples: instead of splitting assets between “A/B Trusts” or “Credit Shelter Trusts,” everything can pass to the surviving spouse, who then has both exemptions available.

The Catch: Portability Isn’t Automatic

Here’s the key point: portability only works if the executor of the first spouse’s estate files a simplified estate tax return (Form 706), even if no taxes are owed.

HOWEVER, if your total estate is well under a single exemption amount (less than $15 million per person after 2026), you may not even need portability at all. But because wealth can grow over time and tax laws can change, many couples still choose to file just in case.

Best To Build Flexibility Into Your Plan

While portability makes planning easier, it’s always a good idea to build flexibility into your planning.

Here’s how we do this:

• Everything passes outright to the surviving spouse.

• But the survivor has the option (the “disclaimer”) to move some assets into a separate trust instead (resembling the old “A/B Trust” structure).

• This gives maximum flexibility: if the tax laws change, or if the family’s wealth grows significantly, the surviving spouse can use this trust to lock in tax savings.

This hybrid approach keeps things simple while still protecting against future changes.

What Couples Should Do Now

If your estate plan was drafted before 2013, it may contain outdated language about “A/B trusts” or complicated tax-driven formulas that no longer make sense. Now is the time to:

1. Review your plan to see if it contains outdated tax provisions.

2. Talk to your attorney about portability provisions to see if they might be a good fit.

3. Ask about disclaimer trust language to keep your options open.

Bottom Line

With today’s higher estate tax exemptions and the portability option, many couples can simplify their planning. The best approach is to review your plan with an estate planning attorney. They can walk you through whether a simplified plan, portability, or a disclaimer trust will provide the most security for your family.