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With all due respect to the Court of Appeals for the Fifth
Circuit, I do not think that this Court's Estate of Clayton
opinion turned on the fact that the executor made a partial
election as opposed to a full election. This Court's opinions in
Estate of Robertson and Estate of Spencer and indeed the present
case involve a full election. Nor can policy concerns about
eliminating the need for testators to risk predicting the future
and providing flexibility and opportunity for post mortem estate
planning provide a principled basis for disregarding the language
actually used by Congress in section 2056(b)(7).
I do not think that, by requiring the executor to make the
election for QTIP treatment, Congress intended to permit such
expansive post mortem estate planning. Congress intended that
the executor have the ability to determine whether property in
which the testator grants the surviving spouse a qualifying
income interest for life should be taxed in the estate of the
first to die or, to the extent not consumed or earlier disposed
of by the surviving spouse, in the estate of the surviving
spouse. Additionally, Congress provided for a partial election
in order to permit the executor to elect to have a portion of
such otherwise qualifying property taxed in the estate of each
spouse. In the Economic Recovery Tax Act of 1981, Pub. L. 97-34,
95 Stat. 172, Congress had already liberalized the marital
deduction provisions, allowing an unlimited estate tax marital
deduction and an unlimited gift tax marital deduction. The QTIP
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