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be deemed an acceptance. In fact, the estate maintains that it
may be inferred from the above example that the regulatory
language in section 25.2518-2(d), Gift Tax Regs., describing the
exercise of a power of appointment as an acceptance of its
benefits, “applies only to an exercise that has become
effective.” Rather, the estate claims that the exercise of the
power in this case never became effective, while respondent takes
the opposite view.
Under California law, a power of appointment is generally
revocable until the property subject thereto has been transferred
or has become distributable pursuant to exercise of the power.
Cal. Prob. Code sec. 695 (West 2002). The power at issue in this
case states that it was to take effect at the surviving settlor’s
death. As previously indicated, the estate’s contention that
decedent’s exercise of her power of appointment never became
effective rests on the relation-back doctrine under State law.
Cal. Prob. Code section 282(a) (West 2002) provides:
Unless the creator of the interest provides for a
specific disposition of the interest in the event of a
disclaimer, the interest disclaimed shall descend, go,
be distributed, or continue to be held (1) as to a
present interest, as if the disclaimant had predeceased
the creator of the interest or (2) as to a future
interest, as if the disclaimant had died before the
event determining that the taker of the interest had
become finally ascertained and the taker’s interest
indefeasibly vested. A disclaimer relates back for all
purposes to the date of the death of the creator of the
disclaimed interest or the determinative event, as the
case may be.
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