Estate Planning, Probate & Elder Law Attorneys

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» 5 Things You Need to Know About the Estate Tax in 2010: #2 (Retroactivity)

Perhaps I am getting ahead of myself -- I have been assuming that we will not have a federal estate tax for 2010. It's possible that Congress might get its act together and actually pass an estate tax bill in 2010 that applies for both 2010 and the future. This is what I've always thought would happen (naive me) -- maybe permanently setting the exemption at $3.5 million.

But this raises the question of what happens with individuals who die in 2010 before the new law, reinstating the estate tax, passes. Could such a law be made retroactive?

Probably. The Supreme Court previously stated (in Carlton v. United States, 512 U.S. 24 (1994)) that a retroactive law is valid under the Constitution if (1) the government shows that the statute has a rational legislative purpose and is not arbitrary and irrational; and (2) the period of retroactivity is "modest." (In Carlton, the "modest" period of retroactivity was 14 months.)

That being said, there is some caselaw indicating that the result might be different if the Supreme Court views this law (estate tax reboot? estate tax 2.0?) as a "wholly new" tax or as simply fixing something in an existing tax (the Carlton case mentioned above involved closing an estate tax loophole).

You may want to take a look at this article on Gideon Alpert's excellent Gay Couples Law Blog for a bit more information on this topic.

» Dead federal estate tax rises from the ashes

With the federal estate tax law having lapsed - and no sign that Congress is planning to address the issue anytime soon - a growing number of states are taking matters into their own hands.

» Her Fearful Symmetry, the Victorians, and Decapitation Provisions

The holiday break gave me a chance to finish Audrey Niffenegger's Her Fearful Symmetry, which I mentioned in my last post. There are a few references to probate and estate planning in the novel, but this is my favorite -- it's a quote given by one of the main characters (Robert) while he gives a tour of London's Highgate Cemetery (which plays a major role in the book).

"Before modern medical technology, people had a difficult time determining when someone was really dead. You might think that death would be pretty blatant, but there were a number of famous cases in which a dead body sat up and went on living, and many Victorians got the jim-jams just thinking about the possibility of being buried alive.

Being a practical people, they attempted to find solutions to the problem. The Victorians invented a system of bells with strings attached that went through the ground and into the coffin, so if you woke up underground you could pull on your bell till someone came to dig you up. There's no record of anyone being saved by one of these devices. People made all sorts of odd stipulations in their wills, such as asking to be decapitated as insurance against an undesired revival."

A Will with a decapitation provision? Excellent!

» Fusion Advisor Network adds Medallion to roster of member firms