One Flesh, Two Taxpayers: A New Approach to Marriage and Wealth Transfer Taxation

Abstract

This article critically examines the estate and gift tax rules currently applicable to marital wealth transfers and proposes a new system in which all transfers between spouses will be subject to taxation. The article begins by tracing the historic development of what the author calls the one flesh, one taxpayer approach to wealth transfer taxation. Over a period of more than thirty years, the marital deduction evolved from a tool for achieving geographic uniformity into an institution based on an unreal and idealized story of proper gender roles and the economic significance of marriage. After describing the wealth transfer tax benefits of marriage under present law, the article next analyzes the jurisprudential implications of the extant one flesh, one taxpayer approach to wealth transfer taxation. Notwithstanding the law's gender neutrality, the author argues that the current estate and gift tax approach to marriage is a vestige of the common law rule of coverture that suspended a woman's legal identity during marriage. Furthermore in departure from important tax policy goals, federal wealth transfer tax laws privilege heterosexual marital relationships over other socially important relationships with economic or emotional characteristics similar to marriage. The author proposes the elimination of the marital deduction in favor of a one flesh, two taxpayer approach to marriage that would cause all gratuitous transfers to be subject to taxation, regardless of the identity of the recipient. As part of this proposal, the author advocates increasing the applicable exclusion amount to $10 million. The author argues that raising the exemption amount will increase federal tax revenue and enhance the vitality of common law and community property systems. The article concludes by connecting the estate and gift tax treatment of marriage to the larger issue of estate tax repeal and reform.

Keywords: estate tax, gift tax, tax policy, women, marriage, feminism, critical legal studies

JEL Classification: K34