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marital trust property was contingent at the time of death. Only
if the decedent’s personal representative elected to have section
2056(b)(7)(A) apply to property would it pass to the marital
trust. To be consistent with the general rule of section
2056(b), any ambiguity in section 2056(b)(7) must be resolved to
prevent property in which the surviving spouse has only a
contingent income interest from being qualified terminable
interest property.
I recognize that it might make good policy sense to
disregard the contingency here present: If we did so, the
property in question would, like any qualified terminable
interest property, be deductible in computing the decedent’s
taxable estate but be includable in determining the surviving
spouse’s gross estate. See secs. 2044, 2056. If I were to
consider section 2056(b)(7) in a vacuum (and if I believed that
the provision were ambiguous), then I might reach that result. I
cannot, however, consider section 2056(b)(7) in a vacuum. The
terminable interest rule plays a major role in section 2056.
Without a specific direction from Congress to disregard the
contingent nature of a surviving spouse’s interest, we are not
free to do so. We would be wise to keep in mind what the Supreme
Court said in the Jackson case (involving the widow’s allowance):
We are mindful that the general goal of the
marital deduction provisions was to achieve uniformity
of federal estate tax impact between those States with
community property laws and those without them. But
the device of the marital deduction which Congress
chose to achieve uniformity was knowingly hedged with
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