Document Type
Article
Publication Date
1970
Publication Information
3 Loy. U. L. A. L. Rev. 1 (1970)
Abstract
It is surprising how many cases have been litigated under Section 2035 of the Internal Revenue Code, which imposes an estate tax on inter vivos gifts in contemplation of death. It is also surprising that those hundreds of judicial opinions embody rigid perceptions of human life, and of attitudes toward death-perceptions which range from incisive to naive. They disclose a judicial system of death psychology which is detailed, systematic and (sometimes) accurate. This is an inquiry into those opinions as psychological autopsies.
The traditional judicial view of a gift in a contemplation of death case implies that the dead man expressly, overtly, considered death as the fact which would bring a series of plans into operation. Giving in contemplation of death is seen as goal-striving behavior which death will implement. I suspect that this view is unsound because it equates "gift in contemplation of death" with "testamentary disposition". That equation is at work in most of the cases. It is a judicial rule of thumb. But it is probably psychologically inaccurate. There is a difference between giving one's property away because one is going to die and making written plans for what is to be done with one's property when one is dead.
The format used here attempts to consolidate hundreds of Section 2035 cases into some kind of unified presentation by proposing three prototype judicial opinions. Each of them is a composite of several real cases; each contains within itself discussion of precedent cases; and each demonstrates what I believe to be typical judicial perceptions of human facts on attitudes toward death. A series of comments follows each of the prototype opinions; the comments are meant to suggest what may become the law review case comment of the future—a new approach which will combine close, logical analysis of what courts have done with a behavioral consideration of the process involved in the decision, and of the consequences the decision may be expected to portend for the profession and the people upon whom the law operates.
Recommended Citation
Thomas L. Shaffer,
The Psychological Autopsy in Judicial Opinions under Section 2035,
3 Loy. U. L. A. L. Rev. 1 (1970).
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/515
Comments
Reprinted with permission of the Loyola of Los Angeles Law Review.