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devisee.18 Thus, Rev. Rul. 64-101, 1964-1 C.B. (Part 1) 77,
continued to have vitality insofar as it relied upon the real
property exception of section 1.661(a)-2(e), Income Tax Regs., to
justify the exclusion of Florida statutory dower from subchapter
J distributions.
3. Exclusion of Statutory Dower From Surviving Spouse’s Gross
Income Requires Exclusion of Elective Share
Several legal and economic characteristics of statutory
dower virtually replicate the characteristics of transfers of
decedents’ real property. Both are rights to property, Fla.
Stat. Ann. sec. 731.34 (West 1964) (repealed 1974), that vest in
the recipient at decedent’s death, Emmerson v. Merritt, 94 N.E.
955, 956 (Ill. 1911) (real property vests at death); Jones v.
Federal Farm Mortgage Corp., 182 So. 226, 227 (Fla. 1938) (same);
In re Estate of Donner, 364 So. 2d at 751 (dower vests at death).
While both rights of succession share antecedents rooted in the
common law, they have both evolved into transfers at death whose
rights and limitations now are a matter of legislative
discretion. Irving Trust Co. v. Day, 314 U.S. 556, 562 (1942);
Coral Gables First Natl. Bank v. Hart, 20 So. 2d 647, 649 (Fla.
1945) (devolution is a matter of legislative discretion). The
most significant limitation on both interests is liability for
18 See T.D. 7287, 1973-2 C.B. 210 (transmittal memorandum
for proposed change to sec. 1.661(a)-2(e), Income Tax Regs., from
IRS to Assistant Secretary of Treasury for Tax Policy).
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