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a. Equitable Apportionment Under Illinois Law
Illinois has no statute specifying who bears the burden of
Federal estate taxes. Thus, application of equitable
apportionment of estate tax is governed by caselaw. Estate of
Maierhofer v. Maierhofer, 767 N.E.2d 850, 852 (Ill. App. Ct.
2002); Landmark Trust Co. v. Aitken, supra at 1082; In re Estate
of Fry, supra at 111. Under Illinois law, if equitable
apportionment applies, estate tax liability is borne only by
property included in the taxable estate. See In re Estate of
Gowling, 411 N.E.2d at 269; Roe v. Estate of Farrell, 372 N.E.2d
at 665. If equitable apportionment applies in this case, the
marital deduction would not be reduced because the Federal estate
tax would be payable from the notice trusts; i.e., property that
would not otherwise pass to the surviving spouse.
b. Equitable Apportionment Does Not Apply Because
Decedent’s Trust Instrument Clearly Provided That
Federal Estate Tax Is Payable From the Marital
Trust
Under Illinois law, equitable apportionment applies if the
decedent provided no direction about payment of Federal estate
tax. In re Estate of Gowling, 411 N.E.2d at 269; Roe v. Estate
of Farrell, supra at 665. Decedent’s trust instrument clearly
provides that if there are not enough assets in the residue of
the probate estate to pay the Federal estate tax, that tax is
payable from the revocable trust; i.e., out of assets that would
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