- 70 - 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 withPage: 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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