AB formula based on pre-ATRA exemption assumptions.
The credit shelter formula references a fixed-amount exclusion that predates the American Taxpayer Relief Act. Current law overfunds the bypass trust, underfunds the marital share, and freezes assets in a less flexible vehicle than the plan intends.
Formula funds bypass with "the largest amount that can pass free of federal estate tax." Plan drafted 2011. Two amendments since, neither updated the formula. Estate is $14.22M; DSUE available through portability.
Whether the surviving spouse intends to rely on portability. Whether a disclaimer option was verbally discussed. The 706 filing posture for the predeceased spouse's estate.
Move the formula to a Clayton-election or disclaimer structure — or confirm portability is the intended path and file the 706.
Decision window open. If the surviving spouse files a protective 706 within five years of date of death, DSUE preservation is still available.