I.R.C. § 2056(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.
I.R.C. § 2056(b) Limitation In The Case Of Life Estate Or Other Terminable Interest
I.R.C. § 2056(b)(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—
I.R.C. § 2056(b)(1)(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
I.R.C. § 2056(b)(1)(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; and no
deduction shall be allowed with respect to such interest (even if such deduction
is not disallowed under subparagraphs (A) and (B))—
I.R.C. § 2056(b)(1)(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.
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.
I.R.C. § 2056(b)(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.
I.R.C. § 2056(b)(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—
I.R.C. § 2056(b)(3)(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
I.R.C. § 2056(b)(3)(B) —
such termination or failure does not in fact occur.
I.R.C. § 2056(b)(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--
I.R.C. § 2056(b)(4)(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
I.R.C. § 2056(b)(4)(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.
I.R.C. § 2056(b)(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—
I.R.C. § 2056(b)(5)(A) —
the interest or such portion thereof so passing shall, for purposes of subsection
(a), be considered as passing to the surviving spouse, and
I.R.C. § 2056(b)(5)(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.
I.R.C. § 2056(b)(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—
I.R.C. § 2056(b)(6)(A) —
such amounts shall, for purposes of subsection (a), be considered as passing to the surviving spouse, and
I.R.C. § 2056(b)(6)(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.
I.R.C. § 2056(b)(7) Election With Respect To Life Estate For Surviving Spouse
I.R.C. § 2056(b)(7)(A) In General —
In the case of qualified terminable interest property—
I.R.C. § 2056(b)(7)(A)(i) —
for purposes of subsection (a), such property shall be
treated as passing to the surviving spouse, and
I.R.C. § 2056(b)(7)(A)(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.
I.R.C. § 2056(b)(7)(B) Qualified Terminable Interest Property Defined —
For purposes of this paragraph—
I.R.C. § 2056(b)(7)(B)(i) In General —
The term “qualified terminable interest property” means property—
I.R.C. § 2056(b)(7)(B)(i)(I) —
which passes from the decedent,
I.R.C. § 2056(b)(7)(B)(i)(II) —
in which the surviving spouse has a qualifying income interest for life, and
I.R.C. § 2056(b)(7)(B)(i)(III) —
to which an election under this paragraph applies.
I.R.C. § 2056(b)(7)(B)(ii) Qualifying Income Interest For Life —
The surviving spouse has a qualifying income interest for life if—
I.R.C. § 2056(b)(7)(B)(ii)(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
I.R.C. § 2056(b)(7)(B)(ii)(II) —
no person has a power to appoint any part of the property to any person other than
the surviving spouse.
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).
I.R.C. § 2056(b)(7)(B)(iii) Property Includes Interest Therein —
The term “property” includes an interest in property.
I.R.C. § 2056(b)(7)(B)(iv) Specific Portion Treated As Separate Property —
A specific portion of property shall be treated as separate property.
I.R.C. § 2056(b)(7)(B)(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.
I.R.C. § 2056(b)(7)(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—
I.R.C. § 2056(b)(7)(C)(i) —
the interest of such surviving spouse shall be treated as a qualifying income interest
for life, and
I.R.C. § 2056(b)(7)(C)(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.
An election under clause (ii), once made, shall be irrevocable.
I.R.C. § 2056(b)(8) Special Rule For Charitable Remainder Trusts
I.R.C. § 2056(b)(8)(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.
I.R.C. § 2056(b)(8)(B) Definitions —
For purposes of subparagraph (A)—
I.R.C. § 2056(b)(8)(B)(i) Charitable Beneficiary —
The term “charitable beneficiary” means any beneficiary which is an organization
described in section 170(c).
I.R.C. § 2056(b)(8)(B)(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)).
I.R.C. § 2056(b)(8)(B)(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).
I.R.C. § 2056(b)(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.
I.R.C. § 2056(b)(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.
I.R.C. § 2056(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—
I.R.C. § 2056(c)(1) —
such interest is bequeathed or devised to such person by the decedent;
I.R.C. § 2056(c)(2) —
such interest is inherited by such person from the decedent;
I.R.C. § 2056(c)(3) —
such interest is the dower or curtesy interest (or statutory interest in lieu thereof)
of such person as surviving spouse of the decedent;
I.R.C. § 2056(c)(4) —
such interest has been transferred to such person by the decedent at any time;
I.R.C. § 2056(c)(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;
I.R.C. § 2056(c)(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
I.R.C. § 2056(c)(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.
I.R.C. § 2056(d) Disallowance Of Marital Deduction Where Surviving Spouse Not United States Citizen
I.R.C. § 2056(d)(1) In General —
Except as provided in paragraph (2), if the surviving spouse of the decedent is not a citizen of the United States—
I.R.C. § 2056(d)(1)(A) —
no deduction shall be allowed under subsection (a), and
I.R.C. § 2056(d)(1)(B) —
section 2040(b) shall not apply.
I.R.C. § 2056(d)(2) Marital Deduction Allowed For Certain Transfers In Trust
I.R.C. § 2056(d)(2)(A) In General —
Paragraph (1) shall not apply to any property passing to the surviving spouse in a qualified domestic
trust.
I.R.C. § 2056(d)(2)(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—
I.R.C. § 2056(d)(2)(B)(i) —
such property is transferred to such a trust before the date on which the return
of the tax imposed by this chapter is made, or
I.R.C. § 2056(d)(2)(B)(ii) —
such property is irrevocably assigned to such a trust under an irrevocable assignment
made on or before such date which is enforceable under local law.
I.R.C. § 2056(d)(3) Allowance Of Credit To Certain Spouses —
If—
I.R.C. § 2056(d)(3)(A) —
property passes to the surviving spouse of the decedent (hereinafter in this paragraph
referred to as the
“first decedent”),
I.R.C. § 2056(d)(3)(B) —
without regard to this subsection, a deduction would be allowable under subsection
(a) with respect to such property, and
I.R.C. § 2056(d)(3)(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.
I.R.C. § 2056(d)(4) Special Rule Where Resident Spouse Becomes Citizen —
Paragraph (1) shall not apply if—
I.R.C. § 2056(d)(4)(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
I.R.C. § 2056(d)(4)(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.
I.R.C. § 2056(d)(5) Reformations Permitted
I.R.C. § 2056(d)(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.R.C. § 2056(d)(5)(A)(i) —
as of the date on which the return of the tax imposed by this chapter is made, or
I.R.C. § 2056(d)(5)(A)(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.
I.R.C. § 2056(d)(5)(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.
(Aug. 16, 1954, ch. 736, 68A Stat. 392; Oct. 4, 1966,
Pub. L. 89-621, Sec. 1(a), 80 Stat. 872; Oct. 4, 1976, Pub. L. 94-455, title XIX, Sec. 1902(a)(12)(A), title XX, Sec. 2002(a), 2009(b)(4)(D), (E), 90
Stat. 1805, 1854, 1894; Nov. 6, 1978, Pub. L. 95-600, title VII, Sec. 702(g)(1), (2), 92 Stat. 2930; Aug. 13, 1981, Pub. L. 97-34, title IV, Sec. 403(a)(1),
(d)(1), 95 Stat. 301, 302; Jan. 12, 1983, Pub. L. 97-448, title I, Sec. 104(a)(2)(A), (8), 96 Stat. 2380, 2381; July 18, 1984, Pub. L. 98-369, div. A, title X, Sec. 1027(a), 98 Stat. 1031;
Nov. 10, 1988, Pub. L. 100-647, title V, Sec. 5033(a)(1), title VI, Sec. 6152(a), 102 Stat. 3670, 3725; Dec. 19,
1989, Pub. L. 101-239, title VII, Sec. 7815(d)(4)(A), (5), (6), (8), 7816(q), 103 Stat. 2415, 2416, 2423;
Nov. 5, 1990, Pub. L. 101-508, title XI, Sec. 11701(l)(1), 11702(g)(5),
104 Stat. 1388-513, 1388-516; Pub. L. 102-486, Sec. 1941(a), Oct. 24, 1992; Pub. L. 105-34, title XIII, XV, Sec. 1303(a), 1311(a), 1312(a), 1314(a), 1530(c)(8), Aug. 5, 1997,
111 Stat 788.)
BACKGROUND NOTES
AMENDMENTS
1997 - Subsec. (b)(7)(C). Pub. L. 105-34, Sec. 1311(a), amended subpar. (C) by inserting “(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”.
Subsec. (b)(8). Pub. L. 105-34, Sec. 1530(c)(8), amended par. (8). Prior to amendment it read as follows:
“(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).”
1992 - Subsec. (b). Pub. L. 102-486, Sec. 1941(a), amended subsec. (b) by adding par. (10).
1990 - Subsec. (d)(3). Pub. L. 101-508, Sec. 11702(g)(5), substituted ‘section 2056A(b)(7)’ for ‘section 2056A(b)(6)’.
Subsec. (d)(4), (5). Pub. L. 101-508, Sec. 11701(l)(1), redesignated par. (4) relating to reformations permitted as par. (5).
1989 - Subsec. (b)(7)(C). Pub. L. 101-239, Sec. 7816(q), inserted ‘included in the gross estate of the decedent under section 2039’ after
‘an annuity’.
Subsec. (d)(2)(B). Pub. L. 101-239, Sec. 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.'
Subsec. (d)(3). Pub. L. 101-239, Sec. 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.
Subsec. (d)(4). Pub. L. 101-239, Sec. 7815(d)(8), added par. (4) relating to reformations permitted.
Pub. L. 101-239, Sec. 7815(d)(5), added par. (4) relating to special rule where resident spouse becomes citizen.
1988 - Subsec. (b)(7)(C). Pub. L. 100-647, Sec. 6152(a), added subpar. (C).
Subsec. (d). Pub. L. 100-647, Sec. 5033(a)(1), added subsec. (d).
1984 - Subsec. (b)(7)(B)(ii)(I). Pub. L. 98-369 inserted ‘, or has a usufruct interest for life in the property’.
1983 - Subsec. (b)(7)(B)(ii). Pub. L. 97-448, Sec. 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).
Subsec. (b)(9). Pub. L. 97-448, Sec. 104(a)(2)(A), added par. (9).
1981 - Subsec. (a). Pub. L. 97-34, Sec. 403(a)(1)(B), substituted ‘subsection (b)’ for ‘subsections (b) and (c)’.
Subsec. (b)(7), (8). Pub. L. 97-34, Sec. 403(d)(1), added pars. (7) and (8).
Subsecs. (c), (d). Pub. L. 97-34, Sec. 403(a)(1)(A), redesignated subsec. (d) as (c) and struck out former subsec. (c)
relating to limitation on aggregate of deductions.
1978 - Subsec. (c)(1)(B). 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 - Subsec. (a). Pub. L. 94-455, Sec. 2009(b)(4)(E), substituted ‘subsections (b) and (c)’ for ‘subsections (b), (c), and
(d)’.
Subsec. (c)(1). Pub. L. 94-455, Sec. 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).
Subsec. (c)(2)(B). Pub. L. 94-455, Sec. 1902(a)(12)(A), struck out ‘Territory,’ after ‘State,’ in provisions preceding cl.
(i).
Subsecs. (d), (e). Pub. L. 94-455, Sec. 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.
1966 - Subsec. (d)(2). 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.
EFFECTIVE DATE OF 1997 AMENDMENTS
Amendment by Sec. 1311(a) of Pub. L. 105-34 applicable to estates of decedents dying after the date of the enactment of this
Act [Enacted:
Aug. 5, 1997].
Amendment by Sec. 1530(c)(8) of Pub. L. 105-34 applicable to transfers made by trusts to, and for the use of, employee stock ownership
plan after the date of the enactment of this Act [Aug. 5, 1997].
EFFECTIVE DATE OF 1992 AMENDMENT
Amendment by Sec. 1941(a) of Pub. L. 102-486 applicable to estates of decedents dying after the date of the enactment of this
Act [Enacted:
Oct. 24, 1992]. Section 1941(c)(1)(B) provided the following exception:
“(B) EXCEPTION. -- The amendment made by subsection
(a) shall not apply to any interest in property which passes (or has passed) to the
surviving spouse of the decedent pursuant to a will
(or revocable trust) in existence on the date of the enactment of this Act if --
“(i) the decedent dies on or before the date 3 years after such date of enactment,
or
“(ii) the decedent was, on such date of enactment, under a mental disability to change
the disposition of his property and did not regain his competence to dispose of such
property before the date of his death.
“The preceding sentence shall not apply if such will (or revocable trust) is amended
at any time after such date of enactment in any respect which will increase the amount
of the interest which so passes or alters the terms of the transfer by which the interest
so passes.”
EFFECTIVE DATE OF 1990 AMENDMENT
Amendment by section 11701(l)(1) of Pub. L. 101-508 effective, except as otherwise provided, as if included in the provision of the Revenue
Reconciliation Act of 1989, Pub. L. 101-239, title VII, to which such amendment relates, see section 11701(n) of Pub. L. 101-508, set out as a note under section 42 of this title.
Amendment by section 11702(g)(5) of Pub. L. 101-508 effective as if included in the provision of the Technical and Miscellaneous Revenue
Act of 1988, Pub. L. 100-647, to which such amendment relates, see section 11702(j) of Pub. L. 101-508, set out as a note under section 59 of this title.
EFFECTIVE DATE OF 1989 AMENDMENT
Section 7815(d)(4)(B) of Pub. L. 101-239 provided that: ‘In the case of the estate of a decedent dying before the date of
the enactment of this Act (Dec. 19, 1989), the period during which the transfer (or
irrevocable assignment) referred to in section 2056(d)(2)(B) of the Internal Revenue Code of 1986 (as amended by subparagraph (A)) may be made shall not expire before the date
1 year after such date of enactment.'
Amendment by Pub. L. 101-239 effective, except as otherwise provided, as if included in the provision of the Technical
and Miscellaneous Revenue Act of 1988, Pub. L. 100-647, to which such amendment relates, see section 7817 of Pub. L. 101-239, set out as a note under section 1 of this title.
EFFECTIVE DATE OF 1988 AMENDMENT
Section 5033(d)(1) of Pub. L. 100-647 provided that: ‘The amendments made by subsections (a) and (c) (enacting section
2056A of this title and amending this section and section 2106 of this title) shall
apply to estates of the decedents dying after the date of the enactment of this Act
(Nov. 10, 1988).’
Section 6152(c) of Pub. L. 100-647 provided that:
‘(1) In general. - Except as otherwise provided in this subsection -
‘(A) the amendment made by subsection
(a) (amending this section) shall apply with respect to decedents dying after December
31, 1981, and
‘(B) the amendment made by subsection
(b) (amending section 2523 of this title) shall apply to transfers after December
31, 1981.
‘(2) Not to apply to extent inconsistent with prior return. - In the case of any estate
or gift tax return filed before the date of the enactment of this Act (Nov. 10, 1988),
the amendments made by this section (amending this section and section 2523 of this
title) shall not apply to the extent such amendments would be inconsistent with the
treatment of the annuity on such return unless the executor or donor (as the case
may be) otherwise elects under this paragraph before the day 2 years after the date
of the enactment of this Act.
‘(3) Extension of time for election out. - The time for making an election under section
2056(b)(7)(C)(ii) or 2523(f)(6)(B)
of the 1986 Code (as added by this subsection) shall not expire before the day 2 years
after the date of the enactment of this Act (and, if such election is made within
the time permitted under this paragraph, the requirement of such section 2056(b)(7)(C)(ii)
that it be made on the return shall not apply).’
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98-369 effective as if included in the amendment made by section 403 of the Economic Recovery
Tax Act of 1981 (Pub. L. 97-34, see Effective Date of 1981 Amendment note below), see section 1027(c) of Pub. L. 98-369, set out as a note under section 2053 of this title.
EFFECTIVE DATE OF 1983 AMENDMENT
Amendment by Pub. L. 97-448 effective, except as otherwise provided, as if it had been included in the provision
of the Economic Recovery Tax Act of 1981, Pub. L. 97-34, to which such amendment relates, see section 109 of Pub. L. 97-448, set out as a note under section 1 of this title.
EFFECTIVE DATE OF 1981 AMENDMENT
Section 403(e) of Pub. L. 97-34 as amended by Pub. L. 97-448, title I, Sec. 104(a)(10), Jan. 12, 1983, 96 Stat. 2381; Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095, provided that:
‘(1) Except as otherwise provided in this subsection, the amendments made by this
section (enacting sections 2044 and 2207A of this title, amending this section and
sections 691, 2012, 2035, 2040, 2045, 2046, 2519, 2523, 2602, and 6019 of this title,
and repealing sections 2515 and 2515A of this title) shall apply to the estates of
decedents dying after December 31, 1981.
‘(2) The amendments made by paragraphs (1), (2), and (3)(A) of subsection (b) (amending
sections 2523 and 6019 of this title), subparagraphs (B) and (C) of subsection (c)(3)
(amending section 6019 of this title and repealing sections 2515 and 2515A of this
title), and paragraphs (2) and (3)(B) of subsection (d), and paragraph (4)(A)
of subsection (d) (to the extent related to the tax imposed by chapter12 of the Internal Revenue Code of 1986
(formerly I.R.C. 1954)) (enacting sections 2207A and 2519 of this title and amending section 2523 of this
title) shall apply to gifts made after December 31, 1981.
‘(3) If -
‘(A) the decedent dies after December 31, 1981,
‘(B) by reason of the death of the decedent property passes from the decedent or is
acquired from the decedent under a will executed before the date which is 30 days
after the date of the enactment of this Act (Aug. 13, 1981), or a trust created before
such date, which contains a formula expressly providing that the spouse is to receive
the maximum amount of property qualifying for the marital deduction allowable by Federal
law,
‘(C) the formula referred to in subparagraph (B) was not amended to refer specifically
to an unlimited marital deduction at any time after the date which is 30 days after
the date of enactment of this Act (Aug. 13, 1981), and before the death of the decedent,
and
‘(D) the State does not enact a statute applicable to such estate which construes
this type of formula as referring to the marital deduction allowable by Federal law
as amended by subsection (a), then the amendment made by subsection (a)
shall not apply to the estate of such decedent.’
EFFECTIVE DATE OF 1978 AMENDMENT
Section 702(g)(3) of Pub. L. 95-600 provided that: ‘The amendment made by this subsection (amending this section) shall
apply to the estates of decedents dying after December 31, 1976.’
EFFECTIVE DATE OF 1976 AMENDMENT
Section 2002(d)(1) of Pub. L. 94-455 provided that:
‘(1)(A) Except as provided in subparagraph (B), the amendment made by subsection (a)
(amending this section) shall apply with respect to the estates of decedents dying
after December 31, 1976.
‘(B) If -
‘(i) the decedent dies after December 31, 1976, and before January 1, 1979,
‘(ii) by reason of the death of the decedent property passes from the decedent or
is acquired from the decedent under a will executed before January 1, 1977, or a trust
created before such date, which contains a formula expressly providing that the spouse
is to receive the maximum amount of property qualifying for the marital deduction
allowable by Federal law,
‘(iii) the formula referred to in clause (ii) was not amended at any time after December
31, 1976, and before the death of the decedent, and
‘(iv) the State does not enact a statute applicable to such estate which construes
this type of formula as referring to the marital deduction allowable by Federal law
as amended by subsection (a), then the amendment made by subsection (a)
shall not apply to the estate of such decedent.’
Amendment by section 2009(b)(4)(D), (E) of Pub. L. 94-455 applicable with respect to transfers creating an interest in person disclaiming made
after Dec. 31, 1976, see section 2009(e)(2) of Pub. L. 94-455, set out as an Effective Date note under section 2518 of this title.
EFFECTIVE DATE OF 1966 AMENDMENT
Section 1(b) of Pub. L. 89-621 provided that: ‘The amendment made by subsection
(a) (amending this section) shall apply with respect to estates of decedents dying
on or after the date of the enactment of this Act
(Oct. 4, 1966).’
REINSTATEMENT OF ESTATE TAX; REPEAL OF CARRYOVER BASIS
Section 301 of Pub. L. 111-312 provided:
“(a)
IN GENERAL.—Each provision of law amended by subtitle A or E of title V of the Economic
Growth and Tax Relief Reconciliation Act of 2001 is amended to read as such provision
would read if such subtitle had never been enacted.
“(b)
CONFORMING AMENDMENT.—On and after January 1, 2011, paragraph
(1) of section 2505(a) of the Internal Revenue Code of 1986 is amended to read as such paragraph would read if section 521(b)(2) of the
Economic Growth and Tax Relief Reconciliation Act of 2001 had never been enacted.
“(c)
SPECIAL ELECTION WITH RESPECT TO ESTATES OF DECEDENTS DYING IN 2010.—Notwithstanding
subsection (a), in the case of an estate of a decedent dying after December 31, 2009,
and before January 1, 2011, the executor (within the meaning of section 2203 of the Internal Revenue Code of 1986) may elect to apply such Code as though the amendments made by subsection
(a) do not apply with respect to chapter 11 of such Code and with respect to property
acquired or passing from such decedent (within the meaning of section 1014(b) of such
Code). Such election shall be made at such time and in such manner as the Secretary
of the Treasury or the Secretary's delegate shall provide. Such an election once made
shall be revocable only with the consent of the Secretary of the Treasury or the Secretary's
delegate. For purposes of section 2652(a)(1) of such Code, the determination of whether
any property is subject to the tax imposed by such chapter 11 shall be made without
regard to any election made under this subsection.
“(d)
EXTENSION OF TIME FOR PERFORMING CERTAIN ACTS.—
“
(1) ESTATE TAX.—In the case of the estate of a decedent dying after December 31, 2009,
and before the date of the enactment of this Act, the due date for—
“(A)
filing any return under section 6018 of the Internal Revenue Codeof 1986 (including any election required to be made on such a return) as such section
is in effect after the date of the enactment of this Act without regard to any election
under subsection (c),
“(B)
making any payment of tax under chapter 11 of such Code, and
“(C)
making any disclaimer described in section 2518(b) of such Code of an interest in
property passing by reason of the death of such decedent, shall not be earlier than
the date which is 9 months after the date of the enactment of this Act.
“(2)
GENERATION-SKIPPING TAX.—In the case of any generation-skipping transfer made after
December 31, 2009, and before the date of the enactment of this Act, the due date
for filing any return under section 2662 of the Internal Revenue Code of 1986 (including any election required to be made on such a return)
shall not be earlier than the date which is 9 months after the date of the enactment
of this Act.
“(e)
EFFECTIVE DATE.—Except as otherwise provided in this section, the amendments made
by this section shall apply to estates of decedents dying, and transfers made, after
December 31, 2009.”
TERMINATION
Section 501(a) (Estate Tax Repeal) of Pub. L. 107-16 added Code Sec. 2210, which states that chapter 11 of subtitle B shall not apply
to the estates of decedents dying after December 31, 2009.
Note, however, that Section 901 (Sunset of Provisions of Act) of Pub. L. 107-16, as amended by Pub. L. 107-358 and Pub. L. 111-312, and struck by Pub. L. 112-240, Sec. 101(a)(1) (effective for taxable, plan, or limitation years beginning after Dec. 31, 2012,
and estates of decedents dying, gifts made, or generation skipping transfers after
Dec. 31, 2012), provided that:
“(a)
IN GENERAL.--All provisions of, and amendments made by, this Act shall not apply--
“(1) to taxable, plan, or limitation years beginning after December 31, 2012, or
“(2) in the case of title V, to estates of decedents dying, gifts made, or generation
skipping transfers, after December 31, 2012.
“(b)
APPLICATION OF CERTAIN LAWS.--The Internal Revenue Code of 1986 and the Employee Retirement
Income Security Act of 1974 shall be applied and administered to years, estates, gifts,
and transfers described in subsection (a) as if the provisions and amendments described
in subsection (a) had never been enacted.
“(c)
EXCEPTION.-Subsection (a) shall not apply to section 803 (relating to no federal income
tax on restitution received by victims of the Nazi regime or their heirs or estates).”
COMMENCEMENT OF JUDICIAL PROCEEDING TO REFORM TRUST
Section 11701(l)(2) of Pub. L. 101-508 provided that: ‘The period during which a proceeding may be commenced under section 2056(d)(5)(A)(ii) of the Internal Revenue Code of 1986 (as redesignated by paragraph (1))
shall not expire before the date 6 months after the date of the enactment of this
Act (Nov. 5, 1990).'
APPLICATION OF AMENDMENTS BY SECTION 5033 OF PUB. L. 100-647 TO ESTATES OF, OR GIFTS BY, NONCITIZEN AND NONRESIDENT INDIVIDUALS
Section 7815(d)(14) of Pub. L. 101-239 provided that: ‘In the case of the estate of, or gift by, an individual who was not
a citizen or resident of the United States but was a resident of a foreign country
with which the United States has a tax treaty with respect to estate, inheritance,
or gift taxes, the amendments made by section 5033 of the 1988 Act (Pub. L. 100-647, enacting section 2056A of this title and amending this section and sections 2106
and 2523 of this title) shall not apply to the extent such amendments would be inconsistent
with the provisions of such treaty relating to estate, inheritance, or gift tax marital
deductions. In the case of the estate of an individual dying before the date 3 years
after the date of the enactment of this Act (Dec. 19, 1989), or a gift by an individual
before the date 3 years after the date of the enactment of this Act, the requirement
of the preceding sentence that the individual not be a citizen or resident of the
United States shall not apply.'
DISCLAIMER OF INTEREST ARISING FROM ESTATES OF PERSONS DYING BEFORE OCT. 4, 1966,
HAVING ESTATE TAX RETURN FILING DATE ON OR AFTER JAN. 1, 1965
Section 1(c) of Pub. L. 89-621 provided that in the case of a decedent dying before Oct. 4, 1966, for which the
date prescribed for filing estate tax return was on or after Jan. 1, 1965, and as
a result of a disclaimer, the surviving spouse became entitled to receive such interest,
then such interest was to be considered as having passed from the decedent to the
surviving spouse under certain conditions, with a limit on the amount of deductions
allowed.
