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(d) If the deduction * * * is allowed because of
the relationship of the person interested in the estate
to the decedent, * * * the deduction * * * inures to
the person having the relationship * * *. [Tex. Prob.
Code Ann. sec. 322A (West 1980 & Supp. 1993).]
Generally, in the absence of specific directions in the will
regarding the apportionment of estate tax, the State's
apportionment statute mandates that estate tax be apportioned
among estate beneficiaries according to the taxable value of
their respective interests in the estate. Tex. Prob. Code Ann.
sec. 322A(b)(1). Apportionment, pursuant to the statute, takes
into consideration bequests qualifying for the marital deduction,
and no estate tax is apportioned to the surviving spouse with
respect to such bequests. Tex. Prob. Code Ann. sec. 322A(c) and
(d). The Texas statute, however, allows the decedent to opt out
of the general scheme by specifically providing for an
alternative plan of apportionment. Tex. Prob. Code Ann. sec.
322A(b)(2).
The dispute in this case principally concerns the effect of
the provision in decedent's will that estate tax be borne by the
residuary estate "as an expense of administration without
apportionment and without contribution or reimbursement from
anyone * * *, including beneficiaries", specifically whether that
provision negates application of Texas Probate Code section
322A(b)(1), in accordance with subsection (b)(2) of that statute.
The highest court of Texas has not spoken directly on the matter
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