The primary purpose of this Article is to dispute the moral claims to post-death property rights made by libertarians when they argue against the estate tax. As I will show later in this Article, my argument does not necessarily entail enacting an estate tax, nor does it require a particular level of tax. I am merely trying to demonstrate that those who argue that the estate tax is an immoral violation of the private property rights of the deceased are mistaken. This is not to say that the estate of the deceased should necessarily pass to the government. It is just to say that we would need to determine as a society what rule to set, having no moral absolutes that would determine how we must set the rule.
This Article offers two central arguments against the unimpeded transfer of property rights. First, I argue that the libertarian view of the moral establishment of property rights through mixing one's labor with the world is inconsistent with establishing property rights in the children of those labor-mixers. Further, Nozick's argument about the justice of particular distributions of wealth depends upon the consent of all involved to the original distribution from which the distribution in question descends. I argue that when we discuss the justice of uneven inheritances and the concerns of intergenerational justice, we cannot assume that generations further down the line have consented to the distribution agreed to by their parents or their parents' parents. Instead, libertarian values require determining the justice of the "original distribution" anew each time. Secondly, I argue that the libertarian view of morally justified property rights does not entail the right to transfer assets after death.7 For libertarians, the moral justification for property ownership stems from mixing one's labor with the world; the individual who holds the moral right is that individual who has, in fact, mixed her labor with the world. Once she dies, her moral rights end. She no longer has a moral claim of ownership over the goods in question, as she did during her lifetime. As a result, without a law giving her a positive right to control the post-death transfer of assets she holds during her lifetime, the labor mixer cannot determine where the goods she owns in her lifetime will go when she dies. Because the moral claim has ended, society can now determine where to set the rule regarding distribution of post-death property without concern that such a rule would violate moral rights.
Jennifer Bird-Pollan, Death, Taxes and Property (Rights): Nozick, Libertarianism, and the Estate Tax, 66 Me. L. Rev. 1 (2013).