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marital deduction gift as a transfer that is intended to qualify
for the marital deduction. Accordingly, we inquire whether
decedent evinced the intention that the property transferred to
his testamentary trust would qualify for the marital deduction.
Id.; see Estate of Heim v. Commissioner, supra.
In the instant case, we must interpret Section Two of the
amended trust, which provides that the trustee shall pay:
all of the net income from the trust estate as the
trustee, in the trustee’s reasonable discretion, shall
determine to be proper for the health, education, or
support, maintenance, comfort and welfare of grantor’s
surviving spouse in accordance with the surviving
spouse’s accustomed manner of living.
Pursuant to Section Two of the amended trust, the surviving
spouse’s right to receive income is significantly restricted. In
determining the appropriate amount of income to distribute to the
surviving spouse, Section Two of the amended trust charges the
trustee to consider, in the trustee’s reasonable discretion, the
surviving spouse’s health, education, support, maintenance,
8(...continued)
SEC. 21520. DEFINITIONS.--
* * * * * * *
(a) “Marital deduction” means the federal estate
tax deduction allowed for transfers under Section 2056
of the Internal Revenue Code or the federal gift tax
deduction allowed for transfers under Section 2523 of
the Internal Revenue Code.
(b) “Marital deduction gift” means a transfer of
property that is intended to qualify for the marital
deduction.
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