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Postmortem Rights of Publicity: The Federal Estate Tax Consequences of New State-Law Property Rights

8 Pages Posted: 5 Apr 2008  

Mitchell Gans

Hofstra University - School of Law

Bridget J. Crawford

Pace University School of Law

Jonathan G. Blattmachr

Milbank, Tweed, Hadley & McCloy LLP

Date Written: April 1, 2008

Abstract

California recently passed legislation that creates retroactive, descendible rights of publicity. The New York State Assembly is poised to enact similar legislation. Legal recognition of postmortem rights of publicity permits a decedent's named beneficiaries or heirs to control (and financially benefit from) use of a deceased personality's image and likeness. Legislators, proponents of these laws, and legal commentators have overlooked two significant federal estate tax consequences of these new state law property rights. First, a descendible right of publicity likely will be included in a decedent's gross estate for federal estate tax purposes. Second, the estate tax value of rights of publicity easily could exceed the estate's liquid assets available to pay taxes. These tax concerns could be eliminated, however, by rewriting the statutes to limit a decedent's ability to control the disposition of any postmortem rights of publicity.

Keywords: estate, estate tax, tax, postmortem, publicity, celebrity, Monroe

JEL Classification: K34, K11

Suggested Citation

Gans, Mitchell and Crawford, Bridget J. and Blattmachr, Jonathan G., Postmortem Rights of Publicity: The Federal Estate Tax Consequences of New State-Law Property Rights (April 1, 2008). Available at SSRN: https://ssrn.com/abstract=1116781 or http://dx.doi.org/10.2139/ssrn.1116781

Mitchell M. Gans

Hofstra University - School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States
(516) 463-5876 (Phone)

Bridget J. Crawford (Contact Author)

Pace University School of Law ( email )

78 North Broadway
White Plains, NY 10603
United States

Jonathan G. Blattmachr

Milbank, Tweed, Hadley & McCloy LLP ( email )

1 Chase Manhattan Plaza
New York, NY 10005
United States
212-530-5066 (Phone)

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