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limited by the expression, “in accordance with the surviving
spouse’s accustomed manner of living.” Accordingly, we interpret
the language of the amended trust to mean that the surviving
spouse does not have such “command over the income that it is
virtually hers”. See sec. 20.2056(b)-5(f)(8), Estate Tax Regs.9
In the instant case, Section Four of the amended trust provides
that the trustee, in exercising reasonable discretion, may
consider “any other income or resources of the beneficiary known
to the trustee and reasonably available.”10 In the instant case,
Section Two of the amended trust limits the surviving spouse’s
entitlement to income without using the term “best interests”.
Moreover, in the instant case, the clause under consideration is
much narrower and more specific than the “best interests” clause
considered by the court in Estate of Nicholson v. Commissioner,
supra. We conclude that the foregoing limitations prevent the
surviving spouse from being entitled to the entire income from
the trust.
Moreover, the surviving spouse’s role as sole trustee under
the trust does not assure her the requisite control over the
9The court in Estate of Ellingson v. Commissioner, 964 F.2d
959 (9th Cir. 1992), revg. 96 T.C. 260 (1991), concluded that to
effectuate the decedent’s intent, paying the surviving spouse
such amount of the income necessary for her “best interests”
meant paying her all of the trust income.
10In the instant case, the decedent did not include in the
amended trust the “best interests” language that appeared in the
1993 trust. Article One, Sections 1.1 and 1.2 of the 1993 trust
were amended by Section Two of the amended trust.
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