- 51 - to a surviving spouse’s disclaimer. Accordingly, while renunciation of an inter vivos power of appointment but retention of a testamentary power would not, in general, result in a qualified disclaimer, see sec. 25.2518-3(d), Example (9), Gift Tax Regs., a surviving spouse is not so constrained. So long as the spouse’s retained power cannot be exercised in a nontaxable context, the disclaimer is effective for tax purposes. Section 2044, in turn, expressly provides that the value of any property for which a deduction was taken under section 2056(b)(7) is included in the surviving spouse’s gross estate. Consequently, a surviving spouse cannot, by means of a testamentary power of appointment over a QTIP trust, direct beneficial enjoyment of the trust property in a transfer that will not be subject to Federal estate tax. We therefore conclude that retention of such a testamentary power does not cause the disclaimer of an inter vivos power to fail to satisfy the section 2518 requirement when a QTIP deduction will be taken for the trust to which the powers relate. Moreover, we note that the foregoing construction harmonizes with section 2056, which explicitly permits a surviving spouse to hold a testamentary power of appointment over a QTIP trust. Since regulations contemplate and case law affirms that disclaimers may be used to enable otherwise ineligible interests to qualify for the marital deduction, see Estate of Bennett v.Page: Previous 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 Next
Last modified: May 25, 2011