- 69 - specific exception to the terminable interest rule is necessary to allow the decedent to make the interest of the surviving spouse conditional on surviving the decedent by 6 months or surviving a common disaster. See sec. 2056(b)(3). Other conditions of survival violate the terminable interest rule. See, e.g., sec. 20.2056(b)-3(d), Example (4), Estate Tax Regs. (condition of survival to date of distribution of property unacceptable). In Jackson v. United States, 376 U.S. 503 (1964), the Supreme Court found that a State-law widow’s allowance was a prohibited terminable interest. The allowance was subject both to a condition precedent (award by a court) and defeasance (abatement upon the widow’s death). The Court stated that the rule uniformly followed is that qualification for the marital deduction must be determined at the time of death. Id. at 508. Thus, consider the following hypothetical situation: The decedent leaves the residue of his estate to his children, except to the extent that his personal representative lists any portion of the residue on the estate tax return as going to the wife. On the authority of the Jackson case, a deduction under section 2056(a) would fail on account of the terminable interest exception for the portion of the residue going to the wife. The general rule of section 2056(b) is that contingent interests are terminable interests. The determination is made at the time of death. Here, the decedent’s wife’s interest in thePage: Previous 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 Next
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