The U.S. Court of Appeals for the Second Circuit has ruled that the inclusion of property in a decedent’s gross estate over which the decedent retained possession or enjoyment at the time of death by an implied agreement is to be apportioned to the extent the decedent actually exercised possession or enjoyment over the property. As such, the decedent’s post-transfer, pre-death conduct concerning the property is critical. The court’s opinion also points out that careful drafting of pre-death agreements for the usage or enjoyment of property interests that have been given away can result in tax savings beyond those generated by valuation discounts if combined with appropriate conduct by the transferor.
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Extent of Retained Possession or Enjoyment Key To Determining Reach of I.R.C. §2036(a)(1) (PDF)