When Spousal Elective Share Paid Out of Foreign Trust, No Marital Deduction To That Extent.

In a recent IRS Chief Counsel Advice, the IRS determined that a marital deduction would not be allowed to the extent that the spousal elective share allowed under state law was paid via assets from a foreign trust.  The trust beneficiary was the decedent's child and the surviving spouse could not access the assets in the trust.  The trust was irrevocable and was administered in a foreign country.  The decedent was a resident of the U.S. at death and his spouse elected the state's elective share which consisted, in part, of assets that passed to the surviving spouse.  On the estate's Form 706, the trust assets were included to fully satisfy the elective share and a marital deduction was claimed equal to the elective share amount.  The trust assets were not eligible for the marital deduction.  C.C.A. 201416007 (Nov. 6, 2013).