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the renunciation relates back for all purposes to the date
of death of the decedent or the donee, as the case may be.
* * * * * * *
(h) Nothing in this Code section shall be deemed
to alter the duties or responsibilities of any
fiduciary to act in the best interests of the person or
persons the fiduciary represents. However, nothing
contained in this Code section shall be deemed to limit
the authority granted by this Code section to the
fiduciary to renounce an interest in property. [Ga.
Code Ann. sec. 53-2-115 (1997).]
A. All Income Payable Annually
We now evaluate the factual circumstances before us in light
of the above-quoted statutory mandates. The first requirement
specified for a qualified income interest for life is that the
surviving spouse be entitled to all income from the property,
payable at least annually. See sec. 2056(b)(7)(B)(ii)(I). At
minimum then, no interest can qualify for QTIP treatment if any
person other than the surviving spouse is entitled to income
distributions during the spouse’s lifetime. The Item V trust,
however, provides a mechanism by which the Lassiter children or
their descendants may receive trust income while Mrs. Lassiter is
living. The trustee is authorized to make such distributions for
the children’s support and education. Unless properly
disclaimed, these interests will be fatal to the marital
deduction.
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