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Note. A nonresident surviving spouse

For federal tax purposes, marriages of

Table of Basic Exclusion and

who is not a citizen of the United States

couples of the same sex are treated the

Credit Amounts

may not take into account the DSUE

same as marriages of couples of the

(as Recalculated for 2017 Rates)

amount of a deceased spouse, except to

opposite sex. The term “spouse” includes

the extent allowed by treaty with his or her

an individual married to a person of the

country of citizenship.

same sex. However, individuals who have

Period

Exclusion

Credit

entered into a registered domestic

Last Deceased Spouse

Amounts

partnership, civil union, or other similar

Limitation

relationship that isn't considered a

1977 (Quarters 1 & 2)

$30,000

$6,000

marriage under state law aren't

The last deceased spouse is the most

1977 (Quarters 3 & 4)

$120,667

$30,000

considered married for federal tax

recently deceased person who was

1978

$134,000

$34,000

purposes.

married to the surviving spouse at the time

of that person's death. The identity of the

1979

$147,333

$38,000

Under a new procedure, a donor who

last deceased spouse is determined as of

made a transfer to the donor's same-sex

1980

$161,563

$42,500

the day a taxable gift is made and is not

spouse, which resulted in a reduction of

1981

$175,625

$47,000

impacted by whether the decedent's

the donor's applicable exclusion amount,

estate elected portability or whether the

can now recalculate the remaining

1982

$225,000

$62,800

last deceased spouse had any DSUE

applicable exclusion. This procedure is

1983

$275,000

$79,300

amount available. Remarriage also does

only available to transfers that did not

1984

$325,000

$96,300

not affect the designation of the last

qualify for the marital deduction for federal

deceased spouse and does not prevent

gift tax purposes at the time of the

1985

$400,000

$121,800

the surviving spouse from applying the

transfer, based solely on the application of

1986

$500,000

$155,800

DSUE amount to taxable transfers.

DOMA. If the limitations period has

1987 through 1997

$600,000

$192,800

expired, the donor may recalculate the

When a taxable gift is made, the DSUE

remaining applicable exclusion. However,

1998

$625,000

$202,050

amount received from the last deceased

once the limitations period on assessment

spouse is applied before the surviving

1999

$650,000

$211,300

of tax has expired, neither the value of the

spouse's basic exclusion amount. A

2000 and 2001

$675,000

$220,550

transferred interest nor any position

surviving spouse who has more than one

concerning a legal issue (other than the

2002 through 2010

$1,000,000

$345,800

predeceased spouse is not precluded

existence of the marriage) related to the

from using the DSUE amount of each

2011

$5,000,000 $1,945,800

transfer can be changed. Similarly, no

spouse in succession. A surviving spouse

credit or refund of the gift taxes paid on

2012

$5,120,000 $1,993,800

may not use the sum of DSUE amounts

the donor's transfer to the donor's

from multiple predeceased spouses at

2013

$5,250,000 $2,045,800

same-sex spouse can be given once the

one time nor may the DSUE amount of a

2014

$5,340,000 $2,081,800

limitations period on claims for credit or

predeceased spouse be applied after the

refund has expired.

2015

$5,430,000 $2,117,800

death of a subsequent spouse.

The first step of the procedure is to

2016

$5,450,000 $2,125,800

When a surviving spouse applies the

determine the amount of applicable

2017

$5,490,000 $2,141,800

DSUE amount to a lifetime gift, the IRS

exclusion that was expended on a taxable

may examine any return of a predeceased

gift to a same-sex spouse. In any given

Schedule C. Portability of

spouse whose executor elected portability

year, the amount of applicable exclusion

to verify the allowable DSUE amount. The

Deceased Spousal Unused

expended on a taxable gift to a same-sex

DSUE may be adjusted or eliminated as a

spouse is equal to the amount of

Exclusion (DSUE) Amount

result of the examination; however, the

applicable exclusion expended on all

and Restored Exclusion

IRS may make an assessment of

taxable gifts multiplied by the ratio of the

additional tax on the return of a

amount of taxable gifts to the same-sex

Amount

predeceased spouse only within the

spouse over total taxable gifts. The

applicable limitations period under section

Section 303 of the Tax Relief,

amount of applicable exclusion expended

6501.

Unemployment Insurance

on all taxable gifts is equal to the lesser of

Reauthorization, and Job Creation Act of

the available applicable exclusion or the

Restored Exclusion Amount. Prior to

2010 authorized estates of decedents

amount of all taxable gifts.

the decision of the Supreme Court in

dying on or after January 1, 2011, to elect

United States v. Windsor, 570 U.S. ___,

Example. In 2011, A made $5 million

to transfer any unused exclusion to the

133 S. Ct. 2675 (2013), the Defense of

of taxable gifts. A made a $3 million

surviving spouse. The amount received by

Marriage Act (DOMA), Public Law

taxable gift to his same-sex spouse, B,

the surviving spouse is called the

104-199 (110 Stat. 2419) required that

and a $2 million taxable gift to another

deceased spousal unused exclusion, or

marriages of couples of the same sex

individual, C. A's marriage to B was

DSUE, amount. If the executor of the

should not be treated as being married for

recognized by the state where they got

decedent's estate elects transfer, or

federal tax purposes. As a result,

married, but was not recognized by the

portability, of the DSUE amount, the

taxpayers in a same-sex marriage were

federal government. The transfer to B

surviving spouse can apply the DSUE

not entitled to claim a marital deduction for

would qualify for the marital deduction, if

amount received from the estate of his or

gifts or bequests to each other. Those

A's marriage to B was recognized by the

her last deceased spouse (defined later)

taxpayers were required to use their

federal government. A has a basic

against any tax liability arising from

applicable exclusion amount to defray any

exclusion of $5 million. A had previously

subsequent lifetime gifts and transfers at

gift or estate tax imposed on the transfer

used $1 million of his applicable exclusion

death.

or were required to pay gift or estate

on other gifts in previous years. This

taxes, to the extent the taxpayer's

Complete Schedule A before

means that A had $4 million of applicable

exclusion previously had been exhausted.

beginning Schedule C.

exclusion available in 2011. Since A's

In Windsor, the Supreme Court

available applicable exclusion ($4 million)

CAUTION

declared that DOMA was unconstitutional.

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Instructions For Form 709 - United States Gift (And Generation-Skipping Transfer) Tax Return - 2017 Page 16

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