Estate of Willis Edward Clack, Deceased, Marshall & Ilsley Trust Company, Co-Personal Representative, and Richard E. Clack, Co-Personal Representative - Page 70

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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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