Amended 1976
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 2009(b)(4)(D), redesignated subsec. (e) as (d). Former subsec. (d), which related to disclaimers by the surviving spouse or by other persons, was struck out.
Cases: Commissioner v. Estate of Bosch, 387 U.S. 456 (1967); Estate of Clayton v. Commissioner, 976 F.2d 1486 (5th Cir. 1992)
Final rules 6
(a) Allowance of marital deduction For purposes of the tax imposed by section 2001, the value of the taxable estate shall, except as limited by subsection (b), be determined by deducting from the value of the gross estate an amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate.
Amended 1976, 1981
- 1981 Pub. L. 97-34 Pub. L. 97–34, § 403(a)(1)(B), substituted “subsection (b)” for “subsections (b) and (c)”.
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 2009(b)(4)(E), substituted “subsections (b) and (c)” for “subsections (b), (c), and (d)”.
Cited by 13
(b) Limitation in the case of life estate or other terminable interest
Cited by 3
(1) General rule Where, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed under this section with respect to such interest—
Cited by 3
(A) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); and
Cited by 5
(B) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse;
Cited by 3
and no deduction shall be allowed with respect to such interest (even if such deduction is not disallowed under subparagraphs (A) and (B))—
(C) if such interest is to be acquired for the surviving spouse, pursuant to directions of the decedent, by his executor or by the trustee of a trust.
Cited by 1
For purposes of this paragraph, an interest shall not be considered as an interest which will terminate or fail merely because it is the ownership of a bond, note, or similar contractual obligation, the discharge of which would not have the effect of an annuity for life or for a term.
(2) Interest in unidentified assets Where the assets (included in the decedent’s gross estate) out of which, or the proceeds of which, an interest passing to the surviving spouse may be satisfied include a particular asset or assets with respect to which no deduction would be allowed if such asset or assets passed from the decedent to such spouse, then the value of such interest passing to such spouse shall, for purposes of subsection (a), be reduced by the aggregate value of such particular assets.
Cited by 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—
Cited by 4
(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.
(4) Valuation of interest passing to surviving spouse In determining for purposes of subsection (a) the value of any interest in property passing to the surviving spouse for which a deduction is allowed by this section—
(A) there shall be taken into account the effect which the tax imposed by section 2001, or any estate, succession, legacy, or inheritance tax, has on the net value to the surviving spouse of such interest; and
(B) where such interest or property is encumbered in any manner, or where the surviving spouse incurs any obligation imposed by the decedent with respect to the passing of such interest, such encumbrance or obligation shall be taken into account in the same manner as if the amount of a gift to such spouse of such interest were being determined.
(5) Life estate with power of appointment in surviving spouse In the case of an interest in property passing from the decedent, if his surviving spouse is entitled for life to all the income from the entire interest, or all the income from a specific portion thereof, payable annually or at more frequent intervals, with power in the surviving spouse to appoint the entire interest, or such specific portion (exercisable in favor of such surviving spouse, or of the estate of such surviving spouse, or in favor of either, whether or not in each case the power is exercisable in favor of others), and with no power in any other person to appoint any part of the interest, or such specific portion, to any person other than the surviving spouse—
Cited by 9
(A) the interest or such portion thereof so passing shall, for purposes of subsection (a), be considered as passing to the surviving spouse, and
(B) no part of the interest so passing shall, for purposes of paragraph (1)(A), be considered as passing to any person other than the surviving spouse.
This paragraph shall apply only if such power in the surviving spouse to appoint the entire interest, or such specific portion thereof, whether exercisable by will or during life, is exercisable by such spouse alone and in all events.
(6) Life insurance or annuity payments with power of appointment in surviving spouse In the case of an interest in property passing from the decedent consisting of proceeds under a life insurance, endowment, or annuity contract, if under the terms of the contract such proceeds are payable in installments or are held by the insurer subject to an agreement to pay interest thereon (whether the proceeds, on the termination of any interest payments, are payable in a lump sum or in annual or more frequent installments), and such installment or interest payments are payable annually or at more frequent intervals, commencing not later than 13 months after the decedent’s death, and all amounts, or a specific portion of all such amounts, payable during the life of the surviving spouse are payable only to such spouse, and such spouse has the power to appoint all amounts, or such specific portion, payable under such contract (exercisable in favor of such surviving spouse, or of the estate of such surviving spouse, or in favor of either, whether or not in each case the power is exercisable in favor of others), with no power in any other person to appoint such amounts to any person other than the surviving spouse—
Cited by 3
(A) such amounts shall, for purposes of subsection (a), be considered as passing to the surviving spouse, and
(B) no part of such amounts shall, for purposes of paragraph (1)(A), be considered as passing to any person other than the surviving spouse.
This paragraph shall apply only if, under the terms of the contract, such power in the surviving spouse to appoint such amounts, whether exercisable by will or during life, is exercisable by such spouse alone and in all events.
(7) Election with respect to life estate for surviving spouse
Amended 1981
- 1981 Pub. L. 97-34 Pub. L. 97–34, § 403(d)(1), added pars. (7) and (8).
Cited by 39
(A) In general In the case of qualified terminable interest property—
(i) for purposes of subsection (a), such property shall be treated as passing to the surviving spouse, and
(ii) for purposes of paragraph (1)(A), no part of such property shall be treated as passing to any person other than the surviving spouse.
(B) Qualified terminable interest property defined For purposes of this paragraph—
Cited by 1
(i) In general The term “qualified terminable interest property” means property—
Cited by 2
(I) which passes from the decedent,
(II) in which the surviving spouse has a qualifying income interest for life, and
(III) to which an election under this paragraph applies.
Cited by 2
(ii) Qualifying income interest for life The surviving spouse has a qualifying income interest for life if—
Amended 1983
- 1983 Pub. L. 97-448 Pub. L. 97–448, § 104(a)(8), inserted provision that an annuity shall be treated in a manner similar to an income interest in property (regardless of whether the property from which the annuity is payable can be separately identified).
Cited by 7
(I) the surviving spouse is entitled to all the income from the property, payable annually or at more frequent intervals, or has a usufruct interest for life in the property, and
Amended 1984
- 1984 Pub. L. 98-369 Pub. L. 98–369 inserted “, or has a usufruct interest for life in the property”.
Cited by 1
Subclause (II) shall not apply to a power exercisable only at or after the death of the surviving spouse. To the extent provided in regulations, an annuity shall be treated in a manner similar to an income interest in property (regardless of whether the property from which the annuity is payable can be separately identified).
(iii) Property includes interest therein The term “property” includes an interest in property.
Cited by 1
(iv) Specific portion treated as separate property A specific portion of property shall be treated as separate property.
Cited by 2
(v) Election An election under this paragraph with respect to any property shall be made by the executor on the return of tax imposed by section 2001. Such an election, once made, shall be irrevocable.
Cited by 3
(C) Treatment of survivor annuities In the case of an annuity included in the gross estate of the decedent under section 2039 (or, in the case of an interest in an annuity arising under the community property laws of a State, included in the gross estate of the decedent under section 2033) where only the surviving spouse has the right to receive payments before the death of such surviving spouse—
Amended 1988, 1989, 1997
- 1997 Pub. L. 105-34 Pub. L. 105–34, § 1311(a), inserted “(or, in the case of an interest in an annuity arising under the community property laws of a State, included in the gross estate of the decedent under section 2033)” after “section 2039”.
- 1989 Pub. L. 101-239 Pub. L. 101–239, § 7816(q), inserted “included in the gross estate of the decedent under section 2039” after “an annuity”.
- 1988 Pub. L. 100-647 Pub. L. 100–647, § 6152(a), added subpar. (C).
Cited by 3
(i) the interest of such surviving spouse shall be treated as a qualifying income interest for life, and
(ii) the executor shall be treated as having made an election under this subsection with respect to such annuity unless the executor otherwise elects on the return of tax imposed by section 2001.
Cited by 4
An election under clause (ii), once made, shall be irrevocable.
(8) Special rule for charitable remainder trusts
Amended 1981, 1997
- 1997 Pub. L. 105-34 Pub. L. 105–34, § 1530(c)(8), amended par. (8) generally. Prior to amendment, par. (8) read as follows:
- 1997 “(8) Special rule for charitable remainder trusts.—
“(A) In general.—If the surviving spouse of the decedent is the only noncharitable beneficiary of a qualified charitable remainder trust, paragraph (1) shall not apply to any interest in such trust which passes or has passed from the decedent to such surviving spouse.
“(B) Definitions.—For purposes of subparagraph (A)—
“(i) Noncharitable beneficiary.—The term ‘noncharitable beneficiary’ means any beneficiary of the qualified charitable remainder trust other than an organization described in section 170(c).
“(ii) Qualified charitable remainder trust.—The term ‘qualified charitable remainder trust’ means a charitable remainder annuity trust or charitable remainder unitrust (described in section 664).”
- 1981 Pub. L. 97-34 Pub. L. 97–34, § 403(d)(1), added pars. (7) and (8).
Cited by 10
(A) In general If the surviving spouse of the decedent is the only beneficiary of a qualified charitable remainder trust who is not a charitable beneficiary nor an ESOP beneficiary, paragraph (1) shall not apply to any interest in such trust which passes or has passed from the decedent to such surviving spouse.
Cited by 1
(B) Definitions For purposes of subparagraph (A)—
Cited by 1
(i) Charitable beneficiary The term “charitable beneficiary” means any beneficiary which is an organization described in section 170(c).
(ii) ESOP beneficiary The term “ESOP beneficiary” means any beneficiary which is an employee stock ownership plan (as defined in section 4975(e)(7)) that holds a remainder interest in qualified employer securities (as defined in section 664(g)(4)) to be transferred to such plan in a qualified gratuitous transfer (as defined in section 664(g)(1)).
The term “employee stock ownership plan” means a defined contribution plan—
“In regulations prescribed by the Secretary” leaves this to Treasury. Cited by Reg. § 54.4975-11(a)(1)
A plan shall not be treated as an employee stock ownership plan unless it meets the requirements of section 409(h), section 409(o), and, if applicable, section 409(n), section 409(p), and section 664(g) and, if the employer has a registration-type class of securities (as defined in section 409(e)(4)), it meets the requirements of section 409(e).
For purposes of this section, the term “qualified employer securities” means employer securities (as defined in section 409(l)) which are issued by a domestic corporation—
For purposes of this section, the term “qualified gratuitous transfer” means a transfer of qualified employer securities to an employee stock ownership plan (as defined in section 4975(e)(7)) but only to the extent that—
(iii) Qualified charitable remainder trust The term “qualified charitable remainder trust” means a charitable remainder annuity trust or a charitable remainder unitrust (described in section 664).
(9) Denial of double deduction Nothing in this section or any other provision of this chapter shall allow the value of any interest in property to be deducted under this chapter more than once with respect to the same decedent.
Amended 1983
- 1983 Pub. L. 97-448 Pub. L. 97–448, § 104(a)(2)(A), added par. (9).
Cited by 4
(10) Specific portion For purposes of paragraphs (5), (6), and (7)(B)(iv), the term “specific portion” only includes a portion determined on a fractional or percentage basis.
Amended 1992
- 1992 Pub. L. 102-486 Pub. L. 102–486 added par. (10).
Cited by 2
(c) Definition For purposes of this section, an interest in property shall be considered as passing from the decedent to any person if and only if—
Amended 1981
- 1981 Pub. L. 97-34 Pub. L. 97–34, § 403(a)(1)(A), redesignated subsec. (d) as (c) and struck out former subsec. (c) relating to limitation on aggregate of deductions.
Cited by 1
(1) such interest is bequeathed or devised to such person by the decedent;
Amended 1976, 1978
- 1978 Pub. L. 95-600 Pub. L. 95–600 inserted in cl. (ii) “required to be included in a gift tax return” after “with respect to any gift” and inserted following cl. (ii) “For purposes of this subparagraph, a gift which is includible in the gross estate of the donor by reason of section 2035 shall not be taken into account”.
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 2002(a), designated existing provisions as subpar. (A), substituted provisions that the aggregate amount of the deductions allowed under this section (computed without regard to this subsection) shall not exceed the greater of $250,000 or 50 percent of the value of the adjusted gross estate as defined in par. (2) for provisions that the aggregate amount of the deductions allowed under this section (computed without regard to this subsection) shall not exceed 50 percent of the value of the adjusted gross estate as defined in par. (2), and added subpars. (B) and (C).
Cited by 1
(2) such interest is inherited by such person from the decedent;
Amended 1976
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 1902(a)(12)(A), struck out “Territory,” after “State,” in provisions preceding cl. (i).
Cited by 1
(3) such interest is the dower or curtesy interest (or statutory interest in lieu thereof) of such person as surviving spouse of the decedent;
(4) such interest has been transferred to such person by the decedent at any time;
(5) such interest was, at the time of the decedent’s death, held by such person and the decedent (or by them and any other person) in joint ownership with right of survivorship;
(6) the decedent had a power (either alone or in conjunction with any person) to appoint such interest and if he appoints or has appointed such interest to such person, or if such person takes such interest in default on the release or nonexercise of such power; or
(7) such interest consists of proceeds of insurance on the life of the decedent receivable by such person.
Except as provided in paragraph (5) or (6) of subsection (b), where at the time of the decedent’s death it is not possible to ascertain the particular person or persons to whom an interest in property may pass from the decedent, such interest shall, for purposes of subparagraphs (A) and (B) of subsection (b)(1), be considered as passing from the decedent to a person other than the surviving spouse.
(d) Disallowance of marital deduction where surviving spouse not United States citizen
Amended 1976, 1981, 1988
- 1988 Pub. L. 100-647 Pub. L. 100–647, § 5033(a)(1), added subsec. (d).
- 1981 Pub. L. 97-34 Pub. L. 97–34, § 403(a)(1)(A), redesignated subsec. (d) as (c) and struck out former subsec. (c) relating to limitation on aggregate of deductions.
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 2009(b)(4)(D), redesignated subsec. (e) as (d). Former subsec. (d), which related to disclaimers by the surviving spouse or by other persons, was struck out.
Cited by 12
(1) In general Except as provided in paragraph (2), if the surviving spouse of the decedent is not a citizen of the United States—
Cited by 3
(A) no deduction shall be allowed under subsection (a), and
Cited by 6
(B) section 2040(b) shall not apply.
Cited by 1
(2) Marital deduction allowed for certain transfers in trust
Amended 1966
- 1966 Pub. L. 89-621 Pub. L. 89–621 provided that if the disclaimer is made by the person before the date prescribed for the filing of the estate tax return and if the person does not accept the interest before making the disclaimer, the interest shall, for purposes of this section, be considered as passing from the decedent to the surviving spouse.
Cited by 3
(A) In general Paragraph (1) shall not apply to any property passing to the surviving spouse in a qualified domestic trust.
Cited by 3
(B) Special rule If any property passes from the decedent to the surviving spouse of the decedent, for purposes of subparagraph (A), such property shall be treated as passing to such spouse in a qualified domestic trust if—
Amended 1989
- 1989 Pub. L. 101-239 Pub. L. 101–239, § 7815(d)(4)(A), substituted “Special rule” for “Property passing outside of probate estate” in heading and amended text generally. Prior to amendment, text read as follows: “If any property passes from the decedent to the surviving spouse of the decedent outside of the decedent’s probate estate, for purposes of subparagraph (A), such property shall be treated as passing to such spouse in a qualified domestic trust if such property is transferred to such a trust before the day on which the return of the tax imposed by section 2001 is made.”
Cited by 4
(3) Allowance of credit to certain spouses If—
(A) property passes to the surviving spouse of the decedent (hereinafter in this paragraph referred to as the “first decedent”),
(B) without regard to this subsection, a deduction would be allowable under subsection (a) with respect to such property, and
(C) such surviving spouse dies and the estate of such surviving spouse is subject to the tax imposed by this chapter,
the Federal estate tax paid (or treated as paid under section 2056A(b)(7)) by the first decedent with respect to such property shall be allowed as a credit under section 2013 to the estate of such surviving spouse and the amount of such credit shall be determined under such section without regard to when the first decedent died and without regard to subsection (d)(3) of such section.
Amended 1989, 1990
- 1990 Pub. L. 101-508 Pub. L. 101–508, § 11702(g)(5), substituted “section 2056A(b)(7)” for “section 2056A(b)(6)”.
- 1989 Pub. L. 101-239 Pub. L. 101–239, § 7815(d)(6), substituted “this chapter” for “section 2001” in subpar. (C) and inserted “and without regard to subsection (d)(3) of such section” after “first decedent died” in concluding provisions.
(4) Special rule where resident spouse becomes citizen Paragraph (1) shall not apply if—
(A) the surviving spouse of the decedent becomes a citizen of the United States before the day on which the return of the tax imposed by this chapter is made, and
Cited by 1
(B) such spouse was a resident of the United States at all times after the date of the death of the decedent and before becoming a citizen of the United States.
Amended 1989, 1990
- 1990 Pub. L. 101-508 Pub. L. 101–508, § 11701(l)(1), redesignated par. (4) relating to reformations permitted as par. (5).
- 1989 Pub. L. 101-239 Pub. L. 101–239, § 7815(d)(8), added par. (4) relating to reformations permitted.
- 1989 Pub. L. 101-239 Pub. L. 101–239, § 7815(d)(5), added par. (4) relating to special rule where resident spouse becomes citizen.
Cited by 3
(5) Reformations permitted
Amended 1990
- 1990 Pub. L. 101-508 Pub. L. 101–508, § 11701(l)(1), redesignated par. (4) relating to reformations permitted as par. (5).
(A) In general In the case of any property with respect to which a deduction would be allowable under subsection (a) but for this subsection, the determination of whether a trust is a qualified domestic trust shall be made—
(i) as of the date on which the return of the tax imposed by this chapter is made, or
(ii) if a judicial proceeding is commenced on or before the due date (determined with regard to extensions) for filing such return to change such trust into a trust which is a qualified domestic trust, as of the time when the changes pursuant to such proceeding are made.
Cited by 1
(B) Statute of limitations If a judicial proceeding described in subparagraph (A)(ii) is commenced with respect to any trust, the period for assessing any deficiency of tax attributable to any failure of such trust to be a qualified domestic trust shall not expire before the date 1 year after the date on which the Secretary is notified that the trust has been changed pursuant to such judicial proceeding or that such proceeding has been terminated.