Duty of Consistency and Marital Deduction: Horse and Carriage

10 Pages Posted: 28 Mar 2006

See all articles by Wendy C. Gerzog

Wendy C. Gerzog

University of Baltimore - School of Law

Abstract

The marital deduction provisions suggest a unique application of the rule of consistency. The deduction provides only the benefit of deferral and only on the rationale that the actual transfer occurs at the termination of the marital unit, that is, at the surviving spouse's death. The statute of limitations that begins to run at the death of the first spouse to die has little importance when viewed from that perspective. Moreover, the policy suggesting a very limited exception to the finality of the statute of limitations88 has no application to the marital deduction situation, because there is statistically a likelihood that the unit will survive more than three years from the death of the first spouse to die. The duty of consistency that requires the surviving spouse's estate to retain the same position as the first spouse's estate is clearly reasonable in that context and the courts should liberally apply it.

Keywords: marital deduction, duty of consistency, 2056

Suggested Citation

Gerzog, Wendy C., Duty of Consistency and Marital Deduction: Horse and Carriage. Tax Notes, Vol. 108. pp. 1463- 1472, September 19, 2005. Available at SSRN: https://ssrn.com/abstract=890984

Wendy C. Gerzog (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States
410-837-4522 (Phone)

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