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Alternatives To The Gift And Estate Tax, David G. Duff 2016 University of British Columbia Peter A. Allard School of Law

Alternatives To The Gift And Estate Tax, David G. Duff

Boston College Law Review

Following the near-death experience of the federal gift and estate tax in 2010, the hundredth anniversary of the tax represents an ideal moment to reflect on the role of this tax and whether an alternative approach might be more desirable and sustainable. This Article examines four prominent alternatives to the current tax: an annual wealth tax, taxing unrealized gains at death, including gifts and inheritances in income, and a lifetime accessions tax that would apply to the cumulative value of gifts and inheritances received by individuals over their lifetimes. In order to assess these alternatives, the Article reconsiders the reasons ...


Valuation, Values, Norms: Proposals For Estate And Gift Tax Reform, Bridget J. Crawford 2016 Pace University Elisabeth Haub School of Law

Valuation, Values, Norms: Proposals For Estate And Gift Tax Reform, Bridget J. Crawford

Boston College Law Review

In their contributions to this Symposium, Professor Joseph Dodge, Professor Wendy Gerzog, and Professor Kerry Ryan offer concrete proposals for improving the existing estate and gift tax system. Professor Dodge and Professor Gerzog are especially interested in accuracy in valuation, and advance specific proposals with respect to split-interest transfers and family limited partnerships. Professor Dodge makes an additional proposal to improve the generation-skipping transfer tax system, an understudied area of the law. Professor Gerzog’s Symposium contribution draws particular attention to the legal fiction on which the estate and gift tax marital deductions rely. She would restrict the availability of ...


Marital Sharing Of Transfer Tax Exemptions, Kerry A. Ryan 2016 Saint Louis University School of Law

Marital Sharing Of Transfer Tax Exemptions, Kerry A. Ryan

Boston College Law Review

This Article analyzes portability and its antecedents in order to distill a positive account of marital sharing of transfer tax exemption amounts. Prior to 2010, the estate and gift tax exemption equivalent was a non-transferable, separate tax attribute of each spouse. A spouse could only access his or her spouse’s effective exemption by shifting property into the other spouse’s tax base. With the enactment of portability, Congress decoupled tax-free availability of a spouse’s unified credit from the necessity of a prior intra-spousal transfer. All that is required is an election by the decedent spouse, via the executor ...


Toward A Reality-Based Estate Tax, Wendy C. Gerzog 2016 University of Baltimore School of Law

Toward A Reality-Based Estate Tax, Wendy C. Gerzog

Boston College Law Review

Currently, the estate tax does not accurately value the property and transactions that it is meant to cover. Additionally, the marital and charitable deductions do not reflect actual associated transfers, instead skewing their benefits away from their purported beneficiaries. This Article proposes reforming the estate tax by eliminating these sources of unreality and distortion, and to make the current estate tax a reality-based tax. Through six specific proposals, the Article identifies solutions to the problems associated with testamentary transfers, puts forth alternative methods of valuation to prevent gaming of transfer taxes, and offers significant modifications to two deduction provisions.


Three Whacks At Wealth Transfer Tax Reform: Retained-Interest Transfers, Generation-Skipping Trusts, And Flp Valuation Discounts, Joseph M. Dodge 2016 Florida State University College of Law

Three Whacks At Wealth Transfer Tax Reform: Retained-Interest Transfers, Generation-Skipping Trusts, And Flp Valuation Discounts, Joseph M. Dodge

Boston College Law Review

This Article offers three sets of proposals to reform the existing federal wealth transfer tax system, the common theme being the link between the timing of the taxable transfer and valuation. Under the first set of proposals, transfers with retained interests would be taxed at the first to occur of the transferor’s death or the date the interest expired. In addition, the term “retained interest” would be broadly construed to encompass the power to revoke and the possibility of receiving income or corpus under another person’s power. The second set of proposals relates to the generation-skipping tax. To ...


Should We Tax The Gratuitous Transfer Of Wealth?: An Introduction, James R. Repetti 2016 Boston College Law School

Should We Tax The Gratuitous Transfer Of Wealth?: An Introduction, James R. Repetti

Boston College Law Review

The estate tax was enacted because of concerns about the impact of large concentrations of dynastic wealth on the political process. As discussed in this commentary, which reviews the Symposium articles by Paul Caron, David Joulfaian, and Jennifer Bird-Pollan, recent research by political scientists supports the legitimacy of these concerns. In addition, a significant body of studies suggests that inequality has a long-term negative impact on growth. Paul Caron observes in his article that progressivity in our tax system has been decreasing and that the estate tax was 60% or higher for fifty years (1934–1983), a rate much higher ...


Why Tax Wealth Transfers?: A Philosophical Analysis, Jennifer Bird-Pollan 2016 University of Kentucky College of Law

Why Tax Wealth Transfers?: A Philosophical Analysis, Jennifer Bird-Pollan

Boston College Law Review

The one-hundredth anniversary of the estate tax provides an ideal moment to reflect on the role of wealth transfer taxation in the larger scheme of the U.S. tax system. Wealth and income inequality are at historically high levels, and the responses to these issues are often reduced to a simplistic political dichotomy of “right” versus “left.” The multitude of views of the American people cannot be reduced to such simple generalities without losing important nuances. This Article identifies three general categories of political philosophical viewpoints that are commonly endorsed by both politicians and everyday Americans, and then examines the ...


Considering Alternatives: Are There Methods Other Than The Estate And Gift Tax That Could Better Address Problems Associated With Wealth Concentration?, Ray D. Madoff 2016 Boston College Law School

Considering Alternatives: Are There Methods Other Than The Estate And Gift Tax That Could Better Address Problems Associated With Wealth Concentration?, Ray D. Madoff

Boston College Law Review

This Commentary analyzes three articles generated from the Symposium “The Centennial of the Estate and Gift Tax: Perspectives and Recommendations,” held on October 2, 2015 at Boston College Law School. This Commentary explores the underlying purpose of the estate and gift tax: eliminating wealth inequality. It then considers the three articles’ proposed alternative tax systems—namely an accession tax and a wealth tax—that could more adequately address the problem of wealth concentration, and evaluates the merits of each.


Death Is Not The End: The Second Circuit Allows Posthumous Division Of Pension Benefits In Yale-New Haven Hospital V. Nicholls, Thanithia Billings 2016 Boston College Law School

Death Is Not The End: The Second Circuit Allows Posthumous Division Of Pension Benefits In Yale-New Haven Hospital V. Nicholls, Thanithia Billings

Boston College Law Review

On June 4, 2015, in Yale-New Haven Hospital v. Nicholls, the U.S. Court of Appeals for the Second Circuit held that the Employment Retirement Income Security Act of 1974 (“ERISA”) allows state courts to posthumously amend qualified domestic relations orders (“QDROs”) to divide the pension plan benefits of a deceased plan participant. The Second Circuit joined the U.S. Court of Appeals for the Tenth Circuit in allowing QDROs to be posthumously amended. The U.S. Court of Appeals for the Third Circuit, in contrast, has ruled that upon a plan participant’s death, benefits cannot be reassigned through ...


Arkansas’S Trust Code And Trust Planning: A Ten-Year Perspective, Lynn Foster 2016 University of Arkansas at Little Rock

Arkansas’S Trust Code And Trust Planning: A Ten-Year Perspective, Lynn Foster

University of Arkansas at Little Rock Law Review

In 2001, the Uniform Law Commission adopted the Uniform Trust Code, which regulates certain aspects of trusts. One impetus for the trust code was the ever-increasing popularity of revocable trusts as part of standard estate planning packages. Another was the fact that few states—including Arkansas—had well-developed common law trust rules, let alone any statutory trust codes. In 2005, the Arkansas legislature enacted a slightly modified version of the Uniform Trust Code (UTC), titled the Arkansas Trust Code (ATC). At that time, the University of Arkansas at Little Rock Law Review published my article summarizing the most important features ...


With All My Worldly Goods I Thee Endow: The Law And Statistics Of Dower And Curtesy In Arkansas, J. Cliff McKinney 2016 University of Arkansas at Little Rock William H. Bowen School of Law

With All My Worldly Goods I Thee Endow: The Law And Statistics Of Dower And Curtesy In Arkansas, J. Cliff Mckinney

University of Arkansas at Little Rock Law Review

No abstract provided.


Give Me Liberty And Give Me Death: The Conflict Between Copyright Law And Estates Law, Michael Rosenbloum 2016 University of Georgia School of Law

Give Me Liberty And Give Me Death: The Conflict Between Copyright Law And Estates Law, Michael Rosenbloum

Journal of Intellectual Property Law

No abstract provided.


Trust Term Extension, Reid Kress Weisbord 2016 University of Florida Levin College of Law

Trust Term Extension, Reid Kress Weisbord

Florida Law Review

Over the last thirty years, most jurisdictions in the United States have repealed or abrogated the Rule Against Perpetuities, which prohibits perpetual donor control over property. This, in turn, has led estate planning practitioners to consider whether a trust created to comply with the Rule could, after the Rule’s repeal, be extended in perpetuity to provide for future generations of the settlor’s descendants upon petition of the trustee. Trust term extension in this context implicates fundamental questions about the purpose of a trust: For whose benefit—the beneficiaries’, the settlor’s, or the trustee/fiduciary’s—does the ...


Selective Issues In Effective Medicaid Estate Recovery Statutes, Raymond C. O'Brien 2016 The Catholic University of America, Columbus School of Law

Selective Issues In Effective Medicaid Estate Recovery Statutes, Raymond C. O'Brien

Catholic University Law Review

Medicaid is a joint federal-state partnership program that provides medical care to the elderly, blind, and disabled poor. Unlike Medicare, Medicaid will pay for long-term care, leading millions of persons in need of such care to “spend-down” income or assets to qualify as sufficiently needy or poor. However, the state can eventually seek recovery of expenditures made through estate recovery programs following the death of both spouses. As it currently stands, states have no choice but to become increasingly vigilant in pursuing private funds in order to pay for Medicaid expenditures. As a result, elderly citizens and their families will ...


Ahead Of The Curve: Promoting Land Tenure Security In Sub-Saharan Africa To Protect The Environment, Andrew R. Falk 2016 Seattle University School of Law

Ahead Of The Curve: Promoting Land Tenure Security In Sub-Saharan Africa To Protect The Environment, Andrew R. Falk

Seattle Journal for Social Justice

No abstract provided.


Mapping Chinese Trusts With A Patrimony Compass, Thomas Simmons 2016 University of South Dakota School of Law

Mapping Chinese Trusts With A Patrimony Compass, Thomas Simmons

Tom E. Simmons

Review of: Kai Lyu, Re-Clarifying China's Trust Law: Characteristics and New Conceptual Basis, 36 Loy. L.A. Int'l & Comp. L. Rev. 447 (2015).


Inheritance Law And The Marital Presumption After Obergefell, Paula A. Monopoli 2016 University of Maryland School of Law

Inheritance Law And The Marital Presumption After Obergefell, Paula A. Monopoli

Faculty Scholarship

No abstract provided.


Recent Development: Sieglein V. Schmidt: Pursuant To § 1-206(B) Of The Estates And Trusts Article, Artificial Insemination Encompasses In Vitro Fertilization Using Donated Sperm; A Court May Use The Goldberger Factors To Determine Voluntary Impoverishment; A Trial Court Can Issue A Permanent Injunction For Harassment Based On § 1-203(A) Of The Family Law Article., Virginia J. Yeoman 2016 University of Baltimore Law

Recent Development: Sieglein V. Schmidt: Pursuant To § 1-206(B) Of The Estates And Trusts Article, Artificial Insemination Encompasses In Vitro Fertilization Using Donated Sperm; A Court May Use The Goldberger Factors To Determine Voluntary Impoverishment; A Trial Court Can Issue A Permanent Injunction For Harassment Based On § 1-203(A) Of The Family Law Article., Virginia J. Yeoman

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the term “artificial insemination” includes in vitro fertilization using donated sperm, and that a consenting husband is presumed to be the father of the child born as a result of the procedure. Sieglein v. Schmidt, 447 Md. 647, 652, 136 A.3d 751, 754 (2016). The court also held that the circuit court did not abuse its discretion in finding the husband to be voluntarily impoverished or in issuing a permanent injunction based on harassment. Id.


Running Past Landmines--The Estate Attorney's Dilemma: Ethically Counseling The Client With Alzheimer's Disease, Joseph Karl Grant 2016 Florida A & M University College of Law

Running Past Landmines--The Estate Attorney's Dilemma: Ethically Counseling The Client With Alzheimer's Disease, Joseph Karl Grant

Journal Publications

This Article examines the ethical dilemmas faced by attorneys who represent clients suffering from Alzheimer's disease. To do so, this Article raises three (3) hypothetical case studies,and applies the ABA Model Rules of Professional Conduct, and the American College of Trust and Estate Counsel ("ACTEC") Commentaries, where appropriate, to those hypothetical case studies. Additionally, this Article proposes initiatives to ameliorate the lack of awareness and discussion of Alzheimer's disease in the law school curriculum, and finally, modest initiatives that the practicing bar can embrace to further a discussion and awareness among practicing attorneys about the ethical dilemma ...


Testamentary Freedom And The Implied Right To Inherit, Phyllis C. Taite 2016 Florida A&M University College of Law

Testamentary Freedom And The Implied Right To Inherit, Phyllis C. Taite

Journal Publications

This article comments on Professor Adam J. Hirsch's article about children who are omitted from wills.


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