Estate of Dorothy Walsh, Deceased, Charles E. Walsh, Personal Respresentative - Page 16

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          United States, 259 F. Supp. 184 (S.D.N.Y. 1966) (surviving spouse           
          not entitled to income for life when spouse's right to income is            
          terminated upon remarriage); see also Starrett v. Commissioner,             
          223 F.2d at 166.  A power of appointment that lapses on the                 
          happening of a contingent event such as incompetency is outside             
          the reach of section 2056(b)(5).  This is especially true in the            
          instant case where applicable State law requires that an exercise           
          or release of a power of appointment must adhere to the same                
          formalities as those that must be followed to create a power of             
          appointment or to transfer property in general, e.g., by a                  
          written instrument.  Minn. Stat. Ann. sec. 502.64, 502.79 Subd. 2           
          (West 1990).                                                                
               We also disagree with the estate's alternative argument.               
          The estate has set forth no good reason why we should disregard             
          the validity of the Trust, and we decline to do so.  Although the           
          estate states correctly that we must (and do) interpret the                 
          language of the Agreement in accordance with the settlors'                  
          intent, see, e.g., In re Trust Created Under Agreement with                 
          McLaughlin, 361 N.W.2d 43, 44 (Minn. 1985), the mere fact that              
          the settlors meant for Trust A to qualify for the marital                   
          deduction does not mean that it does so qualify, United States v.           
          First Natl. Trust & Sav. Bank, 335 F.2d at 113-114.  In order for           
          the estate to avail itself of the marital deduction, the Trust              
          must fall within the statutory and regulatory requirements for              
          that deduction.  Id.  As discussed above, it does not.                      



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