Taxing Once, Taxing Twice, Taxing Joint Tenants (Again) at Death Isn't Nice

Stephanie Willbanks, Vermont Law School

Abstract

Although the federal gift and estate taxes were unified in 1976, certain property interests continue to be subjected to both taxes. Joint tenancies between the decedent and someone other than her surviving spouse are one example. This article analyzes the federal gift and estate tax consequences of such joint tenancies and proposes taxing the transfer of a joint tenancy interest only once. Doing so would enhance uniformity in the application of the federal transfer tax by including only the decedent’s proportionate share in her gross estate at her death regardless of the form of ownership—tenancy in common or joint tenancy with the right of survivorship. Doing so would also move the federal transfer tax system one step closer to complete unification, a process begun in 1976.