110 T.C. No. 29 UNITED STATES TAX COURT ESTATE OF DOROTHY M. WALSH, DECEASED, CHARLES E. WALSH, PERSONAL REPRESENTATIVE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 15150-97. Filed June 15, 1998. H and W formed a trust to hold their property during their lives. The trust agreement provided that the property would pass to two trusts (A and B) upon the death of the first spouse, and that the surviving spouse, while competent, was entitled during life to A's income and corpus. The trust agreement provided that, upon the death or incompetency of the surviving spouse, A's property would be distributed to the persons chosen by the surviving spouse, and, if no such persons were chosen, in six equal shares to the children of H and W. W died before H, and W's estate claimed the marital deduction with respect to the assets passing to A. B was funded with assets having an aggregate value of $600,000, and A was funded with the remaining assets. Held: The incompetency provisions in the trust agreement take the property passing to A outside the requirements for the marital deduction; the surviving spouse's power of appointment is not exercisable by the surviving spouse alone and in all events, as isPage: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
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