- 20 - 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.Page: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Next
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