- 19 - 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 orPage: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Next
Last modified: May 25, 2011