-16- 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...)Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 NextLast modified: March 27, 2008