- 7 -
estate tax marital deduction evinced his intention to grant
decedent a testamentary power of appointment:
The statements in Item XIV of Nathan Posner’s will
are very general; they simply demonstrate that he
wanted to qualify the marital trust for the marital
deduction. In light of the broadness of these
pronouncements, and in light of the fact that a marital
trust will qualify for the marital deduction if the
surviving spouse is given either an inter vivos power
of appointment or a testamentary power of appointment,
it is not at all clear that the statements in Item XIV
of Nathan Posner’s will evince an intent to grant Rose
Posner a testamentary power of disposition over the
marital trust’s assets. Given the generality of the
statements, it is almost as easy to conclude that
Nathan Posner intended to grant Rose Posner a solely
inter vivos power of appointment as it is to conclude
that he intended to grant her a testamentary power of
appointment. Thus, the language in Item XIV of the
will does not provide conclusive proof of Nathan
Posner’s intent with respect to Rose Posner’s power of
appointment over the marital trust’s assets.
Furthermore, the court of special appeals stated that under
applicable Maryland caselaw, the language in Mr. Posner’s will
“is insufficient to grant Rose Posner either an inter vivos or a
testamentary power of appointment over the marital trust’s
assets.” Id.4 The court of special appeals stated its holding
as follows: “Accordingly, we hold that Nathan Posner’s will did
not grant Rose Posner a testamentary power of appointment over
the assets of the marital trust.” Id.
4 In a subsequent case involving tax apportionment issues
relating to the marital trust property, see infra note 5, the
court of special appeals characterized this statement as dicta.
Gordon v. Posner, 790 A.2d 675, 679 (Md. Ct. Spec. App. 2002).
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011