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repealed former section 2056(c), thus creating a deduction
unlimited in amount. See ERTA sec. 403(a)(1)(A), 95 Stat. 301.
At the time of its repeal, section 2056(c) had limited the
aggregate deduction to the greater of $250,000 or 50 percent of
the value of the adjusted gross estate. At the time the 1970
will was drafted, the limitation contained in section 2056(c) was
simply 50 percent of the adjusted gross estate’s value.
The estate now seeks through the various disclaimers to take
advantage of these changes and to obtain a greater deduction than
would be afforded by placing up to half of Mr. Lassiter’s assets
in the Item IV trust. As a threshold matter, however, the estate
will be unable to do so if bound by the transitional rule in
section 403(e)(3) of ERTA, 95 Stat. 305. Section 403(e)(3) of
ERTA retains the former aggregate amount limitation if four
conditions are met:
(A) the decedent dies after December 31, 1981,
(B) by reason of the death of the decedent property
passes from the decedent or is acquired from the
decedent under a will executed before the date which is
30 days after the date of the enactment of this Act, or
a trust created before such date, which contains a
formula expressly providing that the spouse is to
receive the maximum amount of property qualifying for
the marital deduction allowable by Federal law,
(C) the formula referred to in subparagraph (B) was not
amended to refer specifically to an unlimited marital
deduction at any time after the date which is 30 days
after the date of enactment of this Act, and before the
death of the decedent, and
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