- 15 - B. Whether the Marital Deduction Trust Meets the Requirements of Section 2056(b)(7) For the property in the marital deduction trust to be QTIP, it must be property: (1) which passes from the decedent; (2) in which the surviving spouse has a qualifying income interest for life; and (3) as to which an election has been made. Sec. 2056(b)(7)(B)(i). The parties agree that the property passed from decedent and that a proper QTIP election was made. Respondent also states in his brief that “the requirements of * * * [section 2056(b)(7)] for treating the property that funded the Marital Deduction Trust as deductible initially appear to be met by the provisions of Section 8. This includes the requirement that the surviving spouse be entitled to all of the net income produced by the trust’s corpus.” We also note that in section 8 of the marital deduction trust, the trustee is directed to distribute the net income “at least annually”, as provided by the statute. Additionally, any income accrued but undistributed at the surviving spouse’s death shall be paid to the surviving spouse’s estate. The issue is whether the terms of section 15 of the trust agreement, the disability section, which are incorporated into the marital deduction trust by section 8.D. of the trust agreement, restrict the surviving spouse’s “qualifying income interest for life” under section 2056(b)(7)(B)(i)(II). As discussed below, we find that the conflicting terms of sections 8Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
Last modified: May 25, 2011