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consent of any other person. * * * Likewise, if there
are any restrictions, either by the terms of the
instrument or under applicable local law, on the
exercise of a power to consume property (whether or not
held in trust) for the benefit of the spouse, the power
is not exercisable in all events. Thus, if a power of
invasion is exercisable only for the spouse’s support,
or only for her limited use, the power is not
exercisable in all events. In order for a power of
invasion to be exercisable in all events, the surviving
spouse must have the unrestricted power exercisable at
any time during her life to use all or any part of the
property subject to the power, and to dispose of it in
any manner, including the power to dispose of it by
gift (whether or not she has power to dispose of it by
will). [Emphasis added.]
Section 2056(b)(5) requires the surviving spouse to “receive
an unlimited power to appoint the underlying property to himself
or to his estate.” Estate of Smith v. Commissioner, 79 T.C. 974,
977 (1982)(citing Estate of Field v. Commissioner, 40 T.C. 802
(1963)); see Estate of Meeske v. Commissioner, 72 T.C. 73 (1979);
see also Estate of May v. Commissioner, 32 T.C. 386 (1959), affd.
283 F.2d 853 (2d Cir. 1960); sec. 20.2056(b)-5(d), Estate Tax
Regs. The power must be exercisable alone and in all events.
Estate of Brantingham v. United States, 631 F.2d 542 (7th Cir.
1980); see Estate of May v. Commissioner, supra.
In deciding whether decedent’s trust created a power of
appointment over the entire interest, we must consider whether
the trust documents created a general power of appointment under
California law. Estate of Robertson v. United States, 310 F.2d
199 (5th Cir. 1962); Estate of Opal v. Commissioner, 54 T.C. 154
(1970), affd. 450 F.2d 1085 (2d Cir. 1971); Estate of Comer v.
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