Estate of Hon Hing Fung, Deceased, Bernard Fung, Executor - Page 17




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          spouse”.  The parties in this case disagree as to the proportion            
          of the California real estate contained in decedent’s residuary             
          estate which should be considered to have passed from him to his            
          surviving spouse for purposes of the section 2056 deduction, and            
          we note that this appears to be a matter of first impression.               
               Following execution of a distribution agreement by                     
          decedent’s residuary beneficiaries and in accordance with an                
          order by the California Superior Court, decedent’s wife received            
          decedent’s one-half interest in both the Monte Vista property and           
          the Calle Victoria property.  Regulations promulgated under                 
          section 2056 provide as follows with regard to will contests and            
          other assignments or surrenders of property in the context of the           
          marital deduction:                                                          
                    If as a result of the controversy involving the                   
               decedent’s will, or involving any bequest or devise                    
               thereunder, a property interest is assigned or                         
               surrendered to the surviving spouse, the interest so                   
               acquired will be regarded as having “passed from the                   
               decedent to his surviving spouse” only if the                          
               assignment or surrender was a bona fide recognition of                 
               enforceable rights of the surviving spouse in the                      
               decedent’s estate.  Such a bona fide recognition will                  
               be presumed where the assignment or surrender was                      
               pursuant to a decision of a local court upon the merits                
               in an adversary proceeding following a genuine and                     
               active contest.  However, such a decree will be                        
               accepted only to the extent that the court passed upon                 
               the facts upon which deductibility of the property                     
               interests depends.  If the assignment or surrender was                 
               pursuant to a decree rendered by consent, or pursuant                  
               to an agreement not to contest the will or not to                      
               probate the will, it will not necessarily be accepted                  
               as a bona fide evaluation of the rights of the spouse.                 
               [Sec. 20.2056(c)-2(d)(2), Estate Tax Regs.]                            






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