Estate of William Blake Burris - Page 6




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          the date of his death any of the incidents of ownership in the              
          policy”.  Sec. 20.2042-1(c)(1), Estate Tax Regs.  Regulations               
          also define “incidents of ownership”:                                       
                    For purposes of this paragraph, the term                          
               “incidents of ownership” is not limited in its meaning                 
               to ownership of the policy in the technical legal                      
               sense.  Generally speaking, the term has reference to                  
               the right of the insured or his estate to the economic                 
               benefits of the policy.  Thus, it includes the power to                
               change the beneficiary, to surrender or cancel the                     
               policy, to assign the policy, to revoke an assignment,                 
               to pledge the policy for a loan, or the obtain from the                
               insurer a loan against the surrender value of the                      
               policy, etc. * * * [Sec. 20.2042-1(c)(2), Estate Tax                   
               Regs.]                                                                 
          The above definition is then augmented by the following caveat:             
                    As an additional step in determining whether or                   
               not a decedent possessed any incidents of ownership in                 
               a policy or any part of a policy, regard must be given                 
               to the effect of the State or other applicable law upon                
               the terms of the policy.  For example, assume that the                 
               decedent purchased a policy of insurance on his life                   
               with funds held by him and his surviving wife as                       
               community property, designating their son as                           
               beneficiary but retaining the right to surrender the                   
               policy.  Under the local law, the proceeds upon                        
               surrender would have inured to the marital community.                  
               Assuming that the policy is not surrendered and that                   
               the son receives the proceeds on the decedent’s death,                 
               the wife’s transfer of her one-half interest in the                    
               policy was not considered absolute before the                          
               decedent’s death.  Upon the wife’s prior death, one-                   
               half of the value of the policy would have been                        
               included in her gross estate.  Under these                             
               circumstances, the power of surrender possessed by the                 
               decedent as agent for his wife with respect to one-half                
               of the policy is not, for purposes of this section, an                 
               “incident of ownership”, and the decedent is,                          
               therefore, deemed to possess an incident of ownership                  
               in only one-half of the policy. [Sec. 20.2042-1(c)(5),                 
               Estate Tax Regs.]                                                      







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Last modified: May 25, 2011