Estate of Willis Edward Clack, Deceased, Marshall & Ilsley Trust Company, Co-Personal Representative, and Richard E. Clack, Co-Personal Representative - Page 69

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          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 the             





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