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decedent’s and Ms. Lee’s deaths for estate and related tax
purposes. To this end, petitioner relies on section 2056(b)(3):
(3) Interest of spouse conditional on survival
for limited period.--For purposes of this subsection,
an interest passing to the surviving spouse shall not
be considered as an interest which will terminate or
fail on the death of such spouse if--
(A) such death will cause a termination
or failure of such interest only if it occurs
within a period not exceeding 6 months after
the decedent's death, or only if it occurs as
a result of a common disaster resulting in
the death of the decedent and the surviving
spouse, or only if it occurs in the case of
either such event; and
(B) such termination or failure does not
in fact occur.
Petitioner argues that section 2056(b)(3) permits the actual
order of the death of spouses to be altered for estate and
related tax purposes as long as the deaths are still within
6 months of each other.
Respondent argues that the marital deduction requires an
actual surviving spouse. Because Ms. Lee died 46 days before
decedent, respondent argues, decedent had no surviving spouse and
decedent’s estate is not entitled to benefit from the marital
deduction. Respondent argues that the wills of decedent and Ms.
Lee cannot operate to change the order of their deaths.
Respondent further argues that the term “survivor” is undefined
in the Code and therefore must be given its normal and customary
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