Lack of Estate Tax in 2010: Now Cheaper to Die?

With the estate tax gone, death becomes cheaper this year.

December 23, 2009, 6:48 PM

Jan. 1, 2010— -- Well, 2010 has arrived -- and because Congress devoted so much effort toward health care reform, we may have ourselves some death panels after all.

While critics have dismissed Sarah Palin's "death panels" to dole out medical care as fiction, a tax loophole may in fact give the heirs of some wealthy people a financial incentive to make this new year their loved one's last.

In 2001, then-President George W. Bush signed a law designed to phase out the estate tax -- a tax on the assets a deceased individual leaves behind. The law reduced the amount wealthy families were taxed after death starting in 2001 -- leading to complete abolition of the tax in 2010, but at the same time it concerned some because of the financial implications of the date when someone died.

For example, a wealthy person who dies on January 1, 2011, and left her heirs $10 million would really be leaving them $5.05 million because of taxes. If they died a day earlier (assuming no changes were made in tax laws), the heirs could receive the full $10 million.

Nobel prize-winning economist Paul Krugman appears to be the first to explain the potential pitfall for some elderly individuals, writing in May 2001 in the New York Times that it should have been called the "Throw Momma From the Train Act of 2001."

Since then other economists have noted the impact tax changes might bring, including bestselling authors Steven Levitt and Stephen Dubner, who wrote in SuperFreakonomics that it would mean heirs would want their benefactors to make it to 2010, but not beyond.

"With this incentive, it's not hard to imagine such heirs giving their parent the best medical care money could buy, at least through the end of the year. Indeed, two Australian scholars found that when their nation abolished its inheritance tax in 1979, a disproportionately high number of people died in the week after the abolition as compared with the week before," they wrote.

Not So Fast

To be sure, Congress could enact legislation to reinstate the estate tax and make it retroactive to the start of the year, so the notion of a wealthy family receiving a windfall by having a relative die in 2010 might be moot.

But while many expect that to happen, "I thought there was no way we'd get to this point without having done something about 2010," said Roberton Williams, a senior fellow at the Tax Policy Center of the Urban Institute.

Although he said the estate tax would likely be restored in some form, part of the problem may be legislative priorities.

"If there are other issues like health care reform or cap and trade, this is relatively small potatoes, so who's going to use what political leverage is the name of the game."

Still, Williams said, people wanting to off themselves for their heirs' sake may want to make sure they make it far enough in this year to ensure nothing changes the law where they will be taxed anyway.

"Death is a rather permanent thing," he said.

How Did We Get Here?

The estate tax has been a contentious issue, as it is perceived by some as a "double tax" -- since some assets are being taxed that were taxed previously.

Advocates of the tax point out that it only affects the wealthiest, and it prevents people from accumulating a windfall simply because their parents were wealthy.

Either eliminating the tax permanently or reinstating it would avoid the issue with the law as it stands now, but debate seems to have put it in place.

In 2001, a largely Republican coalition tried to repeal the estate tax permanently, but their majority could not get the bill past a filibuster, and so instead the changes were put into the tax code, meaning they had to be revisited after 10 years. So a gradual phase-out (done to keep some revenue flowing into the budget) and finally full repeal in 2010 would be reinstated in 2011.

"They anticipated that somewhere during the 10-year window they would just go back and repeal it completely," said Williams. "When they did this in the first place, they never thought 2010 would come around as being the only year. It was not intended that way; it was forced up on them by parliamentary rules in the Senate."

Indeed, it does not seem there was too much concern over the law when it came about.

Dr. Paul McHugh, the former chairman of psychiatry at Johns Hopkins, served on the President's Council on Bioethics under Bush. He said that while the idea that people would attempt to die by Dec. 31, 2010 to avoid a tax was discussed casually by members, it was never part of official meetings.

"We certainly didn't discuss this in a serious fashion," said McHugh. "There was a kind of presumption that the idea that taxing people again and again would eventually be seen as unfair."

"They thought that was going to be an unstable proposition," he said of the tax law, adding that he feels "It's going to be hard to bring it back without something of a fuss."

The estate tax only affects the wealthiest; roughly 1 person in 400 pays the estate tax when they die, and only about 5,500 estates are expected to owe estate taxes this year, according to the Tax Policy Institute.

However, the concern illuminates an issue faced by many at the end of life, who are concerned that the resources they consume to extend their lives may diminish what they can leave for their children.

"These are the kinds of pressures people can feel," said McHugh, although as a staunch opponent of physician-assisted suicide, he said it was not a justification for taking one's life. "This death with dignity idea is made even more ridiculous in that this is death for dollars."

Generational Tension

People respond to the pressure of what they leave to their children differently.

"For some people it's a major concern, for some people it's totally irrelevant," said Rosamond Rhodes, director of bioethics education at the Mount Sinai School of Medicine. "It depends on the character of the person, their own priority and values."

But would some people's concern for their children cause them to somehow arrange to die during a year with no estate taxes? Rhodes said she does not think that many people would resort to physician-assisted suicide in light of this tax lophole.

"You can easily imagine the hypothesis, but there's zero evidence supporting the notion that would happen," she said. "It's very hard to imagine people doing that for money."

But some say that the lack of an estate tax may give some who are clinging on to life just another reason to check out early. Eileen Fitzpatrick is an attorney and coauthor with her sister Jeanne, who is a physician, of "A Better Way of Dying" -- a book that deals with decisions to avoid life-saving measures (but not euthanasia) in order to avoid living beyond the time one wants to. She explained that many who die in 2010 of their own accord would likely die from choosing to avoid certain treatments rather than actively attempting suicide.

"People at the end of life reach a point where extending life ceases to be a good thing for that person because the quality of life has so degraded that quality of life has become miserable," Fitzpatrick said.