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decedent’s debts. See, e.g., Fla. Stat. Ann. sec. 733.613 (West
1995) (power of sale over real property to pay debts); Fla. Stat.
Ann. sec. 731.34 (West 1964) (repealed 1974) (personalty liable
for decedent’s secured debts after 1939).
The Commissioner’s ruling in Rev. Rul. 64-101, 1964-1 C.B.
(Part 1) 77, confirmed that the longstanding practice of
excluding dower from a widow’s gross income under the 1939 Code
and earlier revenue acts would be continued under the 1954 Code.
6 Merten's Law of Federal Income Taxation, sec. 36.81 at 390
(1949) (“Amounts received as dower by a widow are not taxable”
under the 1939 Code). There is no evidence in the legislative
history of the 1954 Code that Congress intended to reverse the
exclusion when it enacted subchapter J.19 That exclusion ensures
that the surviving spouse will incur no income tax liability by
19 In Lemle v. United States, 419 F. Supp. 68, 71 (S.D.N.Y.
1976), affd. on another ground 579 F.2d 185 (2d Cir. 1978), the
District Court expressed the view that payment of a former
version of the New York elective share, which was entitled to
share in estate income, resulted in sec. 662 distributions to the
surviving spouse, is distinguishable. The Court of Appeals for
the Second Circuit framed the issue in Lemle as “whether, having
already received payments out of estate income, * * * [the
taxpayer, a surviving spouse] can, by subsequent compromise
agreement, recharacterize them as payments of principal” Lemle v.
United States, 579 F.2d at 188, when she and her husband’s estate
subsequently settled her right to the New York elective share.
The Court of Appeals decided that the taxpayer could not do so.
Id.; cf. Delmar v. Commissioner, 25 T.C. 1015, 1021-1022 (1956)
(income received as part of settlement in lieu of a statutory
forced share, which was entitled to share in estate income under
Illinois law, was taxable to the surviving spouse under sec.
162(c) of the 1939 Code).
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