- 39 -
property for life, payable annually or at more frequent
intervals, and no person had a power to appoint any part of
the property to any person other than the surviving spouse.
Thus, in each case the court held that the surviving spouse
had a qualifying interest for life in the property held by
the “QTIP trust”, as required by section 2056(b)(7)(B)(i)
(II), and that the decedent’s estate was entitled to
include the value of the property held by the “QTIP trust”
in the marital deduction.
The tacit premise of petitioner’s second argument is
that we should test the validity of the QTIP election based
upon the interest that Mrs. Rapp received under the order
of the probate court reforming the decedent’s 1986 will.
However, as discussed above, we are not bound by the order
of the probate court in determining what interest in the
trust passed from the decedent to Mrs. Rapp under
California law. Commissioner v. Estate of Bosch, 387 U.S.
at 465. In fact, as discussed in the prior section of this
opinion, we found that the order of the probate court was
not in accordance with the decedent’s intent as determined
from the language used in the decedent’s 1986 will and,
thus, was not in accordance with California law.
Accordingly, we found that Mrs. Rapp’s interest in the
Page: Previous 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 NextLast modified: May 25, 2011