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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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