Case of Tax Planning for the Undead

An Ohio man appeared in court seeking to reverse the 1994 declaration of his death.

The declaration of death (“Declaration”) resulted from his disappearance from his home eight years earlier. Ohio law prevents a court from reversing such a Declaration after three years from its entry. The Ohio man is seeking to reclaim his social security number in order to obtain his driver’s license and sought reversal of the Declaration in order to do so. The man’s former wife objected to the reversal of the Declaration because their children received Social Security benefits as the result of their father’s death. These amounts would have to be repaid and now there are insufficient funds to do so.

There are so many things that follow in taxation that follow as a consequence of death. The consequences and complications of a reversal of a Declaration are incalculable.

Suppose an estate tax return was filed and a QTIP election was made. Would the rebirth of the decedent obviate the tax return or would the Declaration make this a valid testamentary QTIP as of the time of the election? If the Declaration were reversed caused the How does one deal with the Deceased Spouse Unused Exclusion Amount and portability?

In the Ohio case, the wife was accorded the unmarried status as the result of the Declaration. If the Declaration were reversed and she had already re-married, who is her spouse? Would she be prevented from filing joint income tax returns with her current husband?  Is bigamy an issue?

Imagine the uncertainty resulting from the Declaration in Generation Skipping Transfer Tax (GSTT) context. Suppose the Ohio man’s father or mother died and his share of their estate passed in trust to the grandchildren. The predeceased ancestor rule would have moved the grandchildren up a generation because of the Declaration. What would happen if the Declaration is reversed if no GST exemption were allocated to the trust? Would all future distributions to the grandchildren become taxable transfers?

Consider the passing of property under a Will or intestacy. Would a claim arise for the return of the property from a recipient? If the man owned property or partnerships that distributed cash during the eight-year absence and post declaration of death, would the man be entitled to receive an accounting or return of the distributions? If there were mortgages, bank loans and personal guarantees, how does one rearrange history.

The period of time that must elapse before a declaration of death may be declared varies by state; however, it is easy to understand why it is five or more years in most states. The old saying is that the only certainties are death and taxes. Obviously, that is not so in this case.