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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.
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