Article: Restricting Funeral Expense Deductions

William A. Drennan (Southern Illinois School of Law) recently published an Article, Restricting Funeral Expense Deductions, Dick. L. Rev., 2022. Provided below is an abstract to the Article:

During the Middle Ages, the wealthy often requested burial in mass graves with their fellow mortals, as a sign of humility. But since the rise of the cult of the individual during the Renaissance, individual burial plots have been an expression of prestige, wealth, and social status for some. For example, Leona Helmsley, real estate baroness and “Queen of Mean,” dedicated $3 million upon her death for the care and maintenance of her 1300 square foot, $1.4 million mausoleum. Respectful disposition of the body is a hallmark of civilization and a common law requirement of estate administration, but an extravagant burial is a personal choice which can impose significant costs on future generations.

A tax deduction for discretionary spending is a government subsidy which shifts part of that cost to other taxpayers. The current federal estate tax deduction for funeral expenses, combined with accommodating laws for administering decedents’ estates, allow the rich to shift 40 percent of the entire cost of big-money burials to other taxpayers. These deductible big-money burials can monopolize substantial, valuable real estate and significantly contribute to environmental pollution. An analysis of current case law reveals that estate and trust law doctrines generally fail to recognize the potential dual character of burial expenses and fail to curb excesses.

This Article asserts that funeral expenses, including burial and related costs, can have a dual character. On the one hand, to the extent of the reasonable cost of a respectful burial, a federal estate tax deduction is appropriate because a decent disposition is mandated by law and social norms—those expenses are not voluntary. In contrast, this Article asserts that excessive funeral and burial expenses are a voluntary transfer of personal wealth at death, and those expenses should not be deductible. Other taxpayers should not have to subsidize land-hoarding, environmentally-damaging burials of the wealthy.

https://lawprofessors.typepad.com/trusts_estates_prof/2023/07/article-restricting-funeral-expense-deductions.html