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from the trust for life, as required by the order of the
probate court. See id.
Petitioner begins by arguing that the order of the
probate court must be presumed to be "a bona fide
recognition of enforceable rights" under California law
and that respondent has failed to rebut that presumption.
In support of that argument, petitioner cites section
20.2056(e)-2(d)(2), Estate Tax Regs. (currently sec.
20.2056(c)-2(d)(2), Estate Tax Regs.), which provides as
follows:
If as a result of the controversy involving the
decedent's will, or involving any bequest or
devise thereunder, a property interest is
assigned or surrendered to the surviving spouse,
the interest so acquired will be regarded as
having "passed from the decedent to his surviving
spouse" only if the assignment or surrender was a
bona fide recognition of enforceable rights of
the surviving spouse in the decedent's estate.
Such a bona fide recognition will be presumed
where the assignment or surrender was pursuant to
a decision of a local court upon the merits in an
adversary proceeding following a genuine and
active contest. However, such a decree will be
accepted only to the extent that the court passed
upon the facts upon which deductibility of the
property interest depends. If the assignment or
surrender was pursuant to a decree rendered by
consent, or pursuant to an agreement not to
contest the will or not to probate the will, it
will not necessarily be accepted as a bona fide
evaluation of the rights of the spouse.
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