Estate of Ralph H. Davis, Deceased, Evelyn Davis, Personal Representative - Page 13




                                       - 13 -                                         
               surviving spouse.  (5) The power in the surviving spouse               
               (whether exercisable by will or during life) must be                   
               exercisable by her alone and in all events.  [Emphasis                 
               added.]                                                                
               Regulations promulgated pursuant to section 2056(b)(5)                 
          require the surviving spouse to be entitled for life to all of              
          the income from either the entire interest or from a specific               
          portion of the entire interest.5  Sec. 20.2056(b)-5(a)(1), Estate           
          Tax Regs.; see Estate of Wisely v. United States, 703 F. Supp.              
          474, 476 (W.D. Va. 1988).  Moreover, the income must be payable             
          to the surviving spouse annually or at more frequent intervals.             
          Sec. 20.2056(b)-5(a)(2), Estate Tax Regs.; see Estate of Meeske             
          v. Commissioner, supra at 78.                                               
               The surviving spouse’s command over the income from the                
          trust must be such that the income is “virtually hers”.  Estate             
          of Wilson v. Commissioner, T.C. Memo. 1992-479, citing sec.                 
          20.2056(b)-5(f)(8), Estate Tax Regs., which provides:                       
               In the case of an interest passing in trust, the terms                 
               “entitled for life” and “payable annually or at more                   
               frequent intervals,” as used in the conditions set forth in            
               paragraph (a)(1) and (2) of this section, require that under           
               the terms of the trust the income referred to must be                  
               currently (at least annually; see paragraph (e) of this                
               section) distributable to the spouse or that she may have              
               such command over the income that it is virtually hers.                
               Thus, the conditions in paragraph (a)(1) and (2) of this               
               section are satisfied in this respect if, under the terms of           
               the trust instrument, the spouse has the right exercisable             
               annually (or more frequently) to require distribution to               



               5The estate has not contended that the surviving spouse’s              
          interest relates to a specific portion of the trust principal.              





Page:  Previous  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  Next

Last modified: May 25, 2011