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If she is entitled to any property of the estate, then only what's over $1 million would be subject to estate tax
. Thus, she would not need to disclaim everything she's entitled to. She could do a partial disclaimer. The rest would go to you tax free as part of the unlimited marital deduction.
If she disclaimed everything, then assuming it all goes to you there is no estate tax -- again the unlimited marital deduction.
You could then file a federal
estate tax return
for his estate within 9 months to elect portability of his estate tax exemption. That would give you $5.25 x 2 = $10.5 million to play with on the federal side. Then, something to consider is planning
to begin gifting portions of the total estate over time so that upon your death you don't have more than the then applicable NY estate tax exemption of $1 million. That would allow you to avoid federal and state estate tax on your death.
Even if she only makes a partial disclaimer, it would be good for you to work with a local
attorney to file the federal estate tax return, claim his unused exemption amount, and implement a gifting plan at once or over time to shrink your estate so that your estate avoids NY estate tax on your death.