Estate of Hon Hing Fung, Deceased, Bernard Fung, Executor - Page 18




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               In construing this regulation, courts have explained that              
          “the ‘test’ of whether assets pass from the decedent for estate             
          tax purposes is ‘whether the interest reaches the spouse pursuant           
          to state law, correctly interpreted--not whether it reached the             
          spouse as a result of good faith, adversary confrontation.’”                
          Estate of Carpenter v. Commissioner, 52 F.3d 1266, 1273 (4th Cir.           
          1995) (quoting Ahmanson Found. v. United States, 674 F.2d 761,              
          774 (9th Cir. 1981)), affg. T.C. Memo. 1994-108.  A settlement              
          must be based on valid, enforceable rights under the will and               
          State law at the time the settlement was reached in order for               
          property received thereunder to qualify for the marital                     
          deduction.  Id.; see also Estate of Hubert v. Commissioner, 101             
          T.C. 314, 319 (1993), affd. 63 F.3d 1083 (11th Cir. 1995), affd.            
          520 U.S. 93 (1997).  The principle just enunciated is a corollary           
          to the general rule that “Qualification for the marital deduction           
          must be determined as of the time of * * * death.”  First Natl.             
          Exch. Bank v. United States, 335 F.2d 91, 92 (4th Cir. 1964).               
          Accordingly, in situations such as that now before the Court,               
          “the proper focus is on the rights a widow received under the               
          terms of the testamentary * * * [instrument], not on any                    
          subsequent rights she may have received from the settlement                 
          agreement itself.”  Estate of Carpenter v. Commissioner, supra at           
          1273.                                                                       








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