- 12 -
elective share passes from a decedent to a surviving spouse
outside “the subchapter J estate,” so that “the distribution
rules of subchapter J simply do not apply”.5 See also Zaritsky &
Lane, Federal Income Taxation of Estates and Trusts, sec. 1.06 at
1-12 (2d ed. 1993 & Supp. 1996). Petitioner also relies on Rev.
Rul. 64-101, 1964-1 C.B. (Part 1) 77, modified by Rev. Rul. 71-
167, 1971-1 C.B. 163, in which the Commissioner ruled that
payment of the statutory predecessor of the elective share,
Florida statutory dower, did not carry out the estate’s DNI to
the surviving spouse.6
Respondent argues that petitioner is an estate beneficiary
whose elective share interest is qualitatively indistinguishable
from the interests of the estate’s residuary beneficiaries. In
response to petitioner’s argument that any differences between
the Florida elective share and statutory dower amount to “a
5 The terms “subchapter J estate” and “subchapter J
property” were introduced in Ferguson, Freeland, & Stephens,
Federal Income Taxation of Estates and Beneficiaries, 13-14
(1970), to describe property of decedent that, for whatever
reason, becomes subject to the subchapter J distribution rules.
See also Ferguson, Freeland, & Ascher, Federal Income Taxation of
Estates, Trusts, and Beneficiaries, sec. 1.31, at 1:19 (2d ed.
1993 & Supp. 1997) (Ferguson et al.).
6 Petitioner raised alternative arguments if we were to hold
that petitioner’s elective share is subchapter J property: (1)
Petitioner was a creditor of the estate and not a sec. 643(c)
beneficiary; (2) payment in satisfaction of the Florida elective
share qualified as a specific bequest under sec. 663(a)(1); and
(3) capital gains were not properly includable in estate DNI.
Because we decide the main issue as we do, we need not address
petitioner’s alternative arguments.
Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 NextLast modified: May 25, 2011