California recently passed legislation that creates retroactive, descendible rights of publicity. The New York State Assembly is poised to enact similar legislation. Legal recognition of postmortem rights of publicity permits a decedent's named beneficiaries or heirs to control (and financially benefit from) use of a deceased personality's image and likeness. Legislators, proponents of these laws, and legal commentators have overlooked two significant federal estate tax consequences of these new state law property rights. First, a descendible right of publicity likely will be included in a decedent's gross estate for federal estate tax purposes. Second, the estate tax value of rights of publicity easily could exceed the estate's liquid assets available to pay taxes. These tax concerns could be eliminated, however, by rewriting the statutes to limit a decedent's ability to control the disposition of any postmortem rights of publicity.
Bridget J. Crawford, Mitchell M. Gans & Jonathan G. Blattmachr, Postmortem Rights of Publicity: The Federal Estate Tax Consequences of New State-Law Property Rights, 117 Yale L.J. Pocket Part 203 (2008), http://digitalcommons.pace.edu/lawfaculty/490/.