Estate of Helen Christiansen, Deceased, Christine Christiansen Hamilton, Personal Representative - Page 49




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          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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