My blog posting on February 18th, “Client Suicide and Attorney Ethics ” got me thinking. Is suicide itself legal? It used to be illegal, dating back to British common law. As late as 1963, several American jurisdictions criminalized attempted suicide. But, today, no state has a statute against suicide itself. But, what about laws against acting to end another person’s life? Certainly ending someone else’s life is illegal if you do the act without the victim’s consent; that’s murder. However, if the “victim” consents, is it still a crime?

In Washington v. Glucksberg, 521 U.S. 702 (1997) the U.S. Supreme Court held that there is no constitutionally protected right to assisted suicide and, therefore, states may prohibit assisted suicide. The vast majority of states have statutes or common law providing that assisted suicide is a crime. In a handful of states it is not clear. In only three states, it is clear that it is legal and, there, only with physician assistance. Oregon has allowed physician-assisted suicide under the Oregon Death with Dignity Act since 1998, ORS 127.800-955. The state of Washington followed its northwest neighbor with the passage of initiative 1000, which became effective on March 4, 2009. In January 2010, Montana judicially recognized the legality of physician-assisted suicide in Baxter v. Montana . In Oregon, there have been only 460 physician-assisted suicides since passage of the statute in 1998. Of that number, 59 occurred in 2009.

As we all know, there is no federal estate tax in 2010. However, the law currently provides that decedents dying in 2011 with assets exceeding $ 1 million will have those assets taxed at 41% up to 55% of the assets in excess of $1 million.

Oregon is decoupled and imposes a tax above $1 million, even in 2010. Washington is decoupled and imposes a tax above $2 million, even in 2010. While more attractive than Oregon, Washington is not the best jurisdiction. Montana is coupled to the federal estate tax, thus there is no state or federal death tax in 2010. Thus, it appears that the state nicknamed “the Big Sky Country” might be the best place to die in 2010. Perhaps it is appropriate that the state’s motto is ” Oro y Plata ” or “Gold and Silver.” It is the only state which allows physician-assisted suicide and has no federal or state death tax.

Oregon and Washington each require that the patient in the physician-assisted suicide be a resident of their state. Presumably, Montana’s common law physician-assisted suicide would have a similar requirement. Factors demonstrating Oregon residency include but are not limited to:

(1) Possession of an Oregon driver license;
(2) Registration to vote in Oregon;
(3) Evidence that the person owns or leases property in Oregon; or
(4) Filing of an Oregon tax return for the most recent tax year.

Montana requires different lengths of residency for different purposes. For example, it’s 60 days for a driver’s license, but 90 days for a divorce.

Will there be a rush to Oregon, Washington, and Montana in the closing weeks, days, and hours of 2010 in order to cut short a terminal illness and avoid a tax? It will be interesting to see if there is a spike in the numbers of physician-assisted suicides for 2010.

Do you think many terminal clients will attempt to move to Montana, Washington, and Oregon to take advantage of their physician-assisted suicide laws and the estate tax gap of 2010?

Steve Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
(800) 846-1555
www.aaepa.com