- 11 - be accumulated in the discretion of any person other than the surviving spouse, or (2) the consent of any person other than the surviving spouse is required to distribute the income. Sec. 20.2056(b)-5(f)(7), Estate Tax Regs. The power of appointment, if exercisable during life, must be fully exercisable during life. If exercisable by will, the power must be fully exercisable regardless of the time of death. A power of appointment is not exercisable in all events if it may terminate during the life of the surviving spouse without his or her complete exercise or release of it. Sec. 20.2056(b)-5(g)(3), Estate Tax Regs. The incompetency provisions in Article VII of the Agreement take the property passing to Trust A outside the statutory and regulatory requirements for the marital deduction. In Estate of Tingley v. Commissioner, 22 T.C. 402 (1954), the surviving spouse received an income interest and an inter vivos right to withdraw corpus. Under the terms of the trust, this right terminated upon the surviving spouse's legal incapacity or upon the appointment of a guardian; upon legal incapacity or the appointment of a guardian, the trustee was given the discretion to use and apply this part of the net income and corpus for the surviving spouse's benefit. The Court in Estate of Tingley held that the estate was not entitled to the marital deduction mainly because the income interest and power of appointment were outside the scope of the predecessor to section 2056(b)(5). This was so even though thePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011