Title: The 2026 Estate-Tax Sunset Explained: Exemptions, Gifting Now, and Portability
Author: LDS Legal Journal Team
Est Read: 10 minutes

The Numbers You Need to Know (2025 vs. 2026)

• 2025 federal basic exclusion amount (BEA): $13.99 million per person. That’s the amount you can transfer during life and at death, combined, before federal estate/gift tax (40%) applies. IRS+1
• Annual gift-tax exclusion (2025): $19,000 per donee. You can give this amount to any number of recipients in 2025 without using your lifetime exemption or filing a gift-tax return—unless other factors trigger a filing. IRS+1
• On January 1, 2026: the BEA is scheduled to drop to its pre-2018 baseline ($5 million indexed for inflation). Translation: many estates that would escape federal estate tax in 2025 could be taxable if death occurs in 2026 or later. IRS

Bottom line: The government has already told you the scoreboard for 2026. Plan accordingly. IRS

“Clawback” Fear, Resolved: What the IRS Actually Said

A frequent worry is, “If I make large gifts now using the bigger 2018–2025 exemption, will the IRS claw that back if I die after 2025?” The IRS answered no. In final regulations (T.D. 9884), Treasury confirmed that individuals who use the increased exemption won’t be penalized after 2025—their estates get credit for the larger amount used when the gifts were made. In plainer English: use it now; you won’t lose it later. IRS+2Federal Register+2

There are technical nuances (for example, anti-abuse concepts for gifts that are effectively pulled back into the estate), but the core rule stands: completed gifts sheltered by the higher BEA remain respected for estate-tax computation purposes. Carter Ledyard & Milburn LLP

What Smart Gifting Looks Like in Late 2025

1) Use the 2025 annual exclusion ($19,000 per recipient). Married couples can effectively double this via gift-splitting and give to as many recipients as they wish—children, grandchildren, or even trusts drafted to receive annual-exclusion gifts. Keep records, and file Form 709 if required. IRS

2) Consider larger lifetime gifts to “lock in” the higher BEA. If your net worth may exceed a post-sunset exemption, lifetime gifts in 2025 can remove appreciation from your estate and leverage valuation discounts where appropriate. The anti-clawback regs support this approach. Coordinate with appraisers and your CPA. Federal Register

3) Use trusts as vehicles—not just documents.

• Spousal Lifetime Access Trusts (SLATs) can shift assets out of your estate while preserving indirect access through a spouse (draft with divorce/reciprocal-trust traps in mind).
• Grantor Retained Annuity Trusts (GRATs) can move appreciation gift-tax efficiently.
• Intentionally Defective Grantor Trusts (IDGTs) paired with sales or notes can combine estate-freeze effects with income-tax efficiency.
  (Strategy selection is fact-specific; your state law and risk tolerance drive the fit.)

4) Coordinate beneficiary designations and titling. Moving assets via gift is powerful only if the rest of your plan—beneficiary forms, TOD/POD designations, and any revocable living trust—points in the same direction. IRS

Portability: Don’t Let the Second Spouse Lose Millions

Portability lets a surviving spouse add the deceased spouse’s unused exclusion (DSUE) to their own—but only if the estate files Form 706 and elects it. Many moderate-to-high-net-worth couples can stay under tax thresholds only if portability is preserved. IRS

Critically, the IRS created a streamlined path for smaller estates not otherwise required to file: Revenue Procedure 2022-32 extends a simplified, no-user-fee method to elect portability for up to five years after death (subject to its conditions). If your spouse died in recent years and no 706 was filed, talk to counsel immediately—this relief can be a multi-million-dollar swing. IRS+1

Portability with the Sunset: If one spouse dies in 2025, the survivor can generally keep that decedent’s larger DSUE amount even if the survivor dies after 2025—the regs illustrate this with examples. That makes a timely portability election in 2025 especially valuable. Federal Register

State Taxes: The Quiet Gotcha

Even if you’re under the federal threshold, 12+ jurisdictions impose state-level estate or inheritance taxes with far lower exemptions (some under $2 million), plus different rules and portability limits. Confirm your state’s regime; a simple federal-only plan can miss major state tax exposure. (Consult your state’s revenue department website and local counsel for current thresholds; this varies and changes.) [No single federal source governs all state rules.]

Business Owners: Sunset + Succession

For closely held businesses, the sunset intersects with valuation, control, and liquidity:

• Valuation discounts (for lack of control/marketability) can amplify the impact of 2025 gifts if properly substantiated.
• Pair gifts/sales with buy-sell agreements and key-person/insurance to supply liquidity for estate taxes or redemptions if death occurs after 2025.
• If your enterprise might sell within 3–5 years, weigh whether pre-sale gifts to trusts or heirs can shift future appreciation outside your estate.

Because §6166 deferral and other relief provisions are technical, business-owner planning is not a DIY project; model scenarios now while 2025 exemption room remains.

Charitable Planning: Multiply the Benefits

Charitable strategies (outright gifts, donor-advised funds, charitable remainder trusts) can:

• reduce income tax in the year of the gift (subject to AGI limits),
• shrink the taxable estate, and
• move appreciated assets without immediate capital-gains tax.

For families who already give, front-loading larger gifts in 2025 can dovetail with exemption-locking strategies and simplify giving post-sunset.

Practical Checklist

1. Tally your 2025 balance sheet and projected growth; model estate-tax exposure at 2026 levels. (Assume ~$6–7M BEA until Congress/IRS says otherwise.) IRS
2. Max the annual exclusion ($19,000 per donee for 2025; more with gift-splitting). Calendar-year deadline: December 31, 2025. IRS
3. Evaluate larger lifetime gifts to use remaining BEA before the sunset; document valuations and use appropriate trusts. Anti-clawback regs support this. Federal Register
4. Review portability for prior spousal deaths; if missed, assess Rev. Proc. 2022-32 relief within its five-year window. File Form 706 to elect DSUE. IRS+1
5. Coordinate titling/beneficiaries with your will/RLT; inconsistent paperwork defeats good planning. IRS
6. Check state estate/inheritance taxes and plan for liquidity (insurance, buy-sell, trusts) if you own a business or illiquid assets.

FAQs, Straight Answers

Q: Will the exemption really drop in 2026?
A: Under current law, yes—the doubled exemption expires and reverts to the pre-2018 baseline of $5 million indexed. Any change would require new legislation. Plan based on the law as written today. IRS

Q: If I give away $8–10 million in 2025, could my estate be taxed on those gifts after 2025?
A: Not under the final anti-clawback regulations—your estate computes tax credit using the higher exclusion you used when gifting. IRS

Q: Do I need to file anything for portability?
A: Yes. Your executor must file Form 706 and elect portability. Smaller estates may use the simplified method in Rev. Proc. 2022-32 (generally within five years). Don’t miss this; it’s a common (and costly) oversight. IRS+1

Legal Note: This article summarizes federal law as of October 24, 2025. State transfer-tax regimes and individual fact patterns vary. Coordinate with a licensed estate-planning attorney and tax advisor before implementing any strategy.

Category: Estate Planning; Tax Planning; Wills; Trusts; Probate; High-Net-Worth Planning; Business Succession; Charitable Giving; Wealth Transfer; Advanced Strategies; estate tax sunset; 2026 exemption; lifetime gift exemption; annual exclusion gifts; portability (Form 706)

Sources & Authority

• IRS — Estate & Gift Tax FAQs (sunset back to pre-2018 level): https://www.irs.gov/newsroom/estate-and-gift-tax-faqs IRS
• IRS — 2025 Inflation Adjustments (BEA $13.99M; annual exclusion $19,000): https://www.irs.gov/newsroom/irs-releases-tax-inflation-adjustments-for-tax-year-2025 and “What’s New — Estate & Gift” table: https://www.irs.gov/businesses/small-businesses-self-employed/whats-new-estate-and-gift-tax IRS+1
• Anti-Clawback Final Regulations: IRS news release IR-2019-189 (“Making large gifts now won’t harm estates after 2025”): https://www.irs.gov/newsroom/final-regulations-confirm-making-large-gifts-now-wont-harm-estates-after-2025 and Federal Register T.D. 9884: https://www.federalregister.gov/documents/2019/11/26/2019-25601/estate-and-gift-taxes-difference-in-the-basic-exclusion-amount IRS+1
• Portability — Form 706 & Five-Year Simplified Method: Rev. Proc. 2022-32 (PDF): https://www.irs.gov/pub/irs-drop/rp-22-32.pdf and Form 706 Instructions (09/2025): https://www.irs.gov/instructions/i706 IRS+1
• Gifts & Inheritances (2025 Annual Exclusion): https://www.irs.gov/faqs/interest-dividends-other-types-of-income/gifts-inheritances/gifts-inheritances-1 IRS

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