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Second, petitioner's argument makes the marital deduction
formula circuitous. We interpret the marital bequest in the will
as requiring the following calculation: Step 1--the credit
equivalent would be determined; step 2--the marital bequest would
be based on the excess of the gross estate over the credit
equivalent. Under petitioner’s approach, however, the
calculation would be performed a second time to take into
account, in funding the credit equivalent and the marital
deduction, the property disclaimed by the surviving spouse. The
effect would be to substitute one property for another in the
marital bequest. However, we do not find authority for this in
decedent’s will.
The will provided the personal representative with the sole
power to identify the property to be transferred in satisfaction
of the pecuniary marital bequest. To hold for petitioner would
be tantamount to giving the surviving spouse the power to pick
and choose which property would be used to fund the marital
bequest. This would violate the intent of the testator as stated
in his will. Section 2518 contemplates a renunciation of a
bequest of property, not the swapping of one property for another
of equal value. See sec. 25.2518-2(d)(1), Gift Tax Regs.
(receipt of consideration in return for making a disclaimer
prevents the disclaimer from qualifying under the statute); see
also Estate of Monroe v. Commissioner, 104 T.C. 352 (1995).
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