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Abstract

Leaving property at death to the surviving spouse for life (a legal life estate or a life estate in trust) with a remainder interest to a child or children has been a fairly common strategy and continues to be used even with the larger applicable exclusion amount1 and “portability” (which allows the surviving spouse to use the unused applicable exclusion amount at the death of the first spouse to die if the requirements are met).2 One important issue is how is the income tax basis handled under the “uniform basis” rules? What happens if the holder of the life estate dies first in terms of the effect on income tax basis? And what happens if the holder of the remainder interest dies first? Moreover, what if the estate of the decedent whose death gave rise to the new basis at that individual’s death3 claims depreciation before the estate passes the property to the life estate holder and the holder of the remainder interest?

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