Estate of Helen Christiansen, Deceased, Christine Christiansen Hamilton, Personal Representative - Page 16




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                    disclaimer is not a qualified disclaimer with                     
                    respect to any portion of the property.                           
                    Thus, for example, if a disclaimant who is                        
                    not a surviving spouse receives a specific                        
                    bequest of a fee simple interest in property                      
                    and as a result of the disclaimer of the                          
                    entire interest, the property passes to a                         
                    trust in which the disclaimant has a                              
                    remainder interest, then the disclaimer will                      
                    not be a qualified disclaimer unless the                          
                    remainder interest in the property is also                        
                    disclaimed.                                                       
          It’s the language we’ve italicized that seems to resolve this               
          issue.  Hamilton:  (a) is not a surviving spouse, (b) received a            
          specific bequest of a fee simple interest in her mother’s                   
          property under the will, (c) as a result of the disclaimer that             
          property passed to a trust in which Hamilton had a remainder                
          interest, and (d) Hamilton did not disclaim that remainder                  
          interest.                                                                   
               The consequences of this “partial failure of disclaimer” are           
          severe:  not only does the estate not get a deduction for the               
          value of the remainder interest that might go to Hamilton (which,           
          we again note, it has never claimed), but it doesn’t get a                  
          deduction for “any portion” of the property ending up in the                
          Trust.9  That’s what the sentence immediately preceding the                 

               9 The property going directly to the Foundation under the              
          disclaimer doesn’t have this retained-interest problem, and so              
          its value is entirely deductible as a disclaimer of an “undivided           
          portion of an interest.”  Sec. 2518(c)(1); sec. 25.2518-3(b),               
          Gift Tax Regs. (characterizing disclaimer of fractional interest            
          of “each and every substantial interest or right owned by the               
          disclaimant”).  This is presumably why the Commissioner has                 
                                                             (continued...)           





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