-49-
disclaim the rest. The majority’s implication otherwise is
wrong.
B. Contingent Nature of Remainder
I am also not convinced that section 25.2518-2(e)(3), Gift
Tax Regs., controls. That section turns on whether the
disclaimant has the “right to receive” the disclaimed property.
A remainder is merely one example of a right to receive the
property. The contingent remainder that Christiansen’s daughter
retained, however, does not give her the unequivocal right to
receive the property. She will receive the property only if she
is alive at the end of the Trust’s 20-year term. Under South
Dakota law, a contingent remainder does not provide a fixed or
certain right to future enjoyment of property and does not vest
until a condition precedent has occurred. S.D. Codified Laws
sec. 43-3-11 (2004); Rowett v. McFarland, 394 N.W.2d 298, 306
(S.D. 1986).
Where the disclaimant has an unequivocal right to receive
the property, a disclaimer would allow the benefit of avoiding a
second level of tax without the disclaimant really giving up
anything. On the other hand, if the disclaimant has only a
contingent remainder, it is uncertain whether the disclaimant
will ever receive the property. We should not read the
regulation to disqualify a disclaimer because of a vague or
distant possibility the disclaimant could receive the property
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