Victoria J. Haneman (Creighton; Google Scholar), The Estate Tax and De/Valuing Postmortem Publicity Rights, 185 Tax Notes Fed. 1241 (Nov. 11, 2024):

Important policy considerations stand in tension at the intersection of tax law and the right to privacy. On the one hand, it is problematic to allow a taxpayer to destroy a valuable asset through a testamentary instrument just to avoid payment of estate tax. On the other, it is troubling to force post-death commercialization of rights that are so personal to the deceased and potentially shape legacy.

AI has rendered death almost irrelevant for endorsement purposes, and the licensing of name, image, and likeness for dead celebrities has become a big business. Although it may be possible to create a testamentary opt-out or safe harbor to allow a taxpayer the right to be dead, legislating the opt-out without creating a tax dodge for celebrities requires artful drafting. One issue remains certain: Postmortem publicity rights create a tangled thicket for estate tax purposes, and it is likely to become all the more difficult to plan around without a legislative fix.

Editor’s Note:  If you would like to receive a daily email with links to tax posts on TaxProf Blog, email me here.