- 41 -
initio, to the date of death of the testator; and both
have the effect of causing estate property which would
otherwise pass to the Surviving Spouse to pass instead
directly to or for the benefit of other parties. * * *
Id. at 1498. However, the point there, and in the present case,
is that, absent the executor's election, the property is not
"estate property which would otherwise pass to the Surviving
Spouse".
In the case of qualified disclaimers, moreover, section 2518
specifically provides that
if a person makes a qualified disclaimer with respect
to any interest in property, this subtitle shall apply
with respect to such interest as if the interest had
never been transferred to such person.
Thus, the statute specifically mandates the relation-back effect
of a qualified disclaimer. There is no such statutory provision
applicable to an executor's power to appoint property away from
the surviving spouse coupled with the power to make a QTIP
election. Furthermore, section 2056(b)(7)(B)(ii)(II) (and flush
language) specifically precludes applying this relation-back
fiction to the power to appoint the property to someone other
than the surviving spouse by specifically prohibiting anyone from
having such a power at any time prior to the death of the
surviving spouse. I think the Court of Appeals for the Fifth
Circuit's judicially created exception is contrary to the express
language of the statute.
The only means of ignoring an executor's power to appoint
the property to someone other than the surviving spouse
Page: Previous 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 NextLast modified: May 25, 2011