How to title my assets and portability
Historically, planning for a married couple, especially in a common law state like Wyoming which does not have the automatic split of marital property which is the law in community state, involves a discussion about how assets should be titled. Ideally, an amount of assets in the name of each spouse up to the amount of the applicable exclusion. This is recommended so that the estate of the first spouse to die could take full advantage of the funding of a bypass trust. If this was not done, and the spouse with the less property died first, there would be a shortfall in the available exclusions over two deaths, since an insufficient amount of property was owned by the spouse with less assets who died first.
As the transfer tax exclusions grew in size, it became increasingly difficult, as well as burdensome and expensive for many couples to retitle assets, such as real estate holdings and business interests. The spouse with the large share of assets often was reluctant to retitled his or her holdings to the name of the less propertied spouse. Assets in joint names were recommended to be retitled as tenancies in common. Even where there is a willingness to make transfers, some assets could not be retitled, such as a business involving professional licenses or a family business with prohibitions on transferring interests outside the lineal family members.
Portability has made a great change here. Regardless of the title of assets at the first death, portability will grant the surviving spouse the deceased spouse's unused exclusion (DSUE) even if all of the family assets were title in the name of the surviving spouse. There is no longer a federal state tax driven need to retitle assets to divide them between the spouses. That said, retitling to some extent may be useful to fund a credit shelter trust, if needed.