Estate of Ralph H. Davis, Deceased, Evelyn Davis, Personal Representative - Page 19




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          trust income for life, because, by the terms of the amended                 
          trust, decedent’s daughters could become sole or cotrustees of              
          the trust, in the event of the surviving spouse’s resignation or            
          her incapacity to serve as a trustee.  Estate of Ellingson v.               
          Commissioner, supra at 962 (citing Estate of Kyle v.                        
          Commissioner, 94 T.C. 829 (1990)).  Additionally, unlike the                
          “Marital Deduction Trust” in  Estate of Ellingson v.                        
          Commissioner, supra, there is no language in the amended trust              
          which explicitly refers to a marital deduction under section                
          2056.  Accordingly, we conclude that the decedent did not intend            
          to grant the surviving spouse the entire income interest for life           
          from the surviving spouse’s interest in the estate.                         
               We also consider whether the amended trust qualifies for the           
          section 2056(b)(5) exception to the terminable interest rule.  In           
          order to qualify for the exception, the surviving spouse must               
          have the sole power to appoint her entire interest, exercisable             
          by her alone and at all events, with no power in any other person           
          to appoint any part of her interest to anyone but the surviving             
          spouse.  Sec. 2056(b)(5); see sec. 20.2056(b)-5(g)(1) and (3),              
          Estate Tax Regs.  Section 20.2056(b)-5(g)(3), Estate Tax Regs.,             
          provides:                                                                   
                    (3) A power is not considered to be a power                       
               exercisable by a surviving spouse alone and in all                     
               events as required by paragraph (a)(4) of this section                 
               if the exercise of the power in the surviving spouse to                
               appoint the entire interest or a specific portion of it                
               to herself or to her estate requires the joinder or                    





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