Fifth Circuit's Decision in Estate of Monroe Increases Post-Mortem Planning Opportunities

One of the most significant post-mortem planning techniques available is the disclaimer. For example, disclaimers can increase the value of the marital deduction (disclaimers in favor of the surviving spouse), reduce the value of an overfunded marital bequest (disclaimers by the surviving spouse), or redirect the passage of an interest (disclaimers in favor of children). Recently, the Fifth Circuit, in Estate of Monroe v. Commissioner, restored a significant degree of this post-mortem planning flexibility when it reversed the Tax Court and held that the taxpayers and their advisors can intelligently discuss and implement a post-mortem estate plan that utilizes disclaimers. This Article reviews both Monroe decisions and considers their impact on the use of disclaimers in estate administration