- 11 - 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).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: May 25, 2011