Death by a Thousand Cuts: The Rule Against Perpetuities
14 Pages Posted: 10 Mar 2010
Date Written: 1999
This article suggests the policy and social justifications against dead hand control far outweigh transfer tax advantages provided to wealthy settlors and the potential revenue expected to be generated by the abolishment legislation. The abolishment legislation may be readily adopted by other jurisdictions in light of the legislatures' failure to recognize the consequences of unlimited dead hand control.
This article recognizes that the Rule is complicated, and Rule violations present harsh consequences for practitioners and their clients. In fact, violations of the Rule, due to its complexity, have been held as an attorney error, not subject to a malpractice claim. The complexities of the Rule and the harsh consequences for the violations thereof, initiated and resulted in the variations of reform.
A brief discussion of the origin of the Rule, basic elements and the modern reform, are useful for a fuller understanding of this article's critique of the abolishment legislation. After the brief discussion of the Rule and reform, this article categorizes the abolishment legislation as the 1998 abolishment legislation; the additional-incentive jurisdictions and the forerunners of abolishment. After categorizing the abolishment legislation, this article compares the arguments against the abolishment legislation to its advantages. Furthermore, this article emphasizes that the abolishment legislation has ignored dead hand control in favor of providing wealthy settlors with an estate planning tool to minimize federal transfer taxes. In conclusion, this article suggests that in light of the consequences of dead hand control the abolishment legislation should be stopped. Failure to stop the trend among jurisdictions could result in the Federal government curtailing dead hand control.
Keywords: rule against perpetuities, trusts, abolishment legislation, transfer tax advantages, dead hand control, trust beneficiaries, dynasty trust, marketability of property, concentration of wealth, GSTT, generation skipping transfer tax, trustees
JEL Classification: K19, K29, K39, D31
Suggested Citation: Suggested Citation