Can I leave everything to my spouse without paying estate tax?

What the Law Says

Federal law provides an 'unlimited marital deduction' that allows you to transfer any amount of assets to your surviving spouse without incurring federal estate tax — but only if certain conditions are met.

The Internal Revenue Code (IRC) Section 2056 creates the marital deduction for estate tax purposes. It lets the value of property passing from a deceased spouse to a surviving spouse be deducted from the gross estate — effectively reducing the taxable estate to zero, regardless of size.

This deduction is 'unlimited' in amount, meaning there’s no cap on how much you can transfer tax-free. However, it only applies if the surviving spouse is a U.S. citizen. If the spouse is not a U.S. citizen, special rules apply — such as requiring a Qualified Domestic Trust (QDOT) — to qualify for the deduction.

Even with the marital deduction, an estate tax return (IRS Form 706) must still be filed if the gross estate exceeds the federal filing threshold — which in 2024 is $13.61 million (adjusted annually for inflation).

Statutory Text

For purposes of the tax imposed by section 2001, the value of the taxable estate shall, except as provided in subsection (b), be determined by deducting from the value of the gross estate an amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate.

— 26 U.S.C. § 2056(a) — Marital deduction for estate tax

What to Do

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