The proper taxation of the family under both the income tax and the estate tax has been debated for ages. It is an old issue. My purpose, however, is to consider the issue from a perspective somewhat different from that of those who have debated the issue over the years. My perspective is the perspective of the marginalized taxpayer. I critique from this perspective to see if it can tell us anything new about the old debate and to ensure that the ultimate tax treatment is just as to all taxpayers. The estate tax is supposed to be a tax on the property of a decedent. As such, it has been defended as a good and just tax because it taxes the dead rather than the living. However, the current estate tax is unfair because it in fact places a burden on survivors whose interests in the decedent's property ought to be enjoyed by the survivor free from tax. The plight of long-term committed lesbian and gay partners demonstrates the unfairness of this burden. I have suggested seven possible ways to either erase or reduce the burden. All of the options have strengths and weaknesses. If the estate tax is to be maintained, as I think it should be, the simplest solution would be to reduce the burden by increasing the exemption significantly, perhaps to $5 million. The most complex solution, and perhaps the fairest, if the details could be worked out, would be to allow taxpayers to form tax-free personal partnerships with significant others in which they could share intimacy and property free from tax.
Patricia A. Cain,
Death Taxes: A Critique from the Margin,
48 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol48/iss4/5