Estate of Ralph H. Davis, Deceased, Evelyn Davis, Personal Representative - Page 16




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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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