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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.
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