Estate of Clack: Adding Insult to Injury, or More Problems with the QTIP Tax Provisions

Abstract

The article reviews Estate of Clack v. Commissioner. First, the article explains how that case was wrongly decided both in terms of the statute and in the fact that it is inconsistent with most tax elections and determination dates. Second, the article shows how this case adds insult to injury to the "women-deserve-only-income" attitude of the QTIP provisions. Third, the article explains the lack of a justifiable policy goal in giving a special tax break to remarried men with children from an earlier marriage. Fourth, the article explains how Clack has created a multitude of fiduciary liability problems when an executor makes an election under these circumstances.

Keywords: Estate of Clack, QTIP, qualified terminable interest property, marital deduction, demeans women

JEL Classification: H20, H29, K34