. 

Hon. Robert S. Calvert Opinion No. V-l 146. 

Comptroller of Public Accounts 

Austin, Texas Re: Imposition of inheritance 

taxes where surviving 

spouse elects to take less 

than community share under deceased spouse’s will 

disposing of entire comDear Mr. Calvert: munity estate. 

We quote the following excerpt from your letter of November 20, 1950: 

“This department has under consideration the 

correct inheritance tax due by the Estate of Enos Ray 

Hart. 

“Since there is a substantial difference in the 

wills and the trusts set up under the wills in the T.G. 

Hendrick’s case covered by your Opinion No. V-704, 

the Albert Handly case covered by your Opinion No. 

O-5557, and the will made by Enos Ray Hart, I am requesting that you review the will of Enos Ray Hart and 

advise this department whether the entire estate of 

Enos Ray Hart, less the portion taken by the wife under the will, is subject to the inheritance tax levied 

by Article 7117 R. C. S.” 

By the terms of his last will and testament, Enos Ray 

Hart undertook to dispose of the entire community estate of himself 

and his surviving wife, Mary Elizabeth Hart; and Mrs. Hart was expressly required to elect whether she would take under the terms 

of the will or claim her interest in the community estate. Mrs. 

Hart has elected to take under the terms of the will, which makes 

certain specific bequests and provides for the establishment of four 

equal trust funds for the benefit respectively of Mrs. Hart and of 

Mr. Hart’s three children by a prior marriage. The trusts are to 

terminate within a maximum period of five years from decedent’s 

death, at which time the beneficiaries wit1 receive such corpus as 

remaioe in the respective trusts. As a result of her election, Mrs. 

I-&at will receive less property than she wou1.d have received had 

she chosen to claim her share in the community estate of herself 

and Enos Ray Hart. 
Hon. Robert S. Cabvert, Page 2 (V-1146) 

We quote again from your letter of November 20th: 

‘It is andlhas been the constructionof this department that the,entire emtate of Enos,Ray Hart, including the community pooperty less the portion taken 

by the widow under the will, Ls subject to the inlaeritancc tax Levied ur&r Agtkle 7117. It ir the contention of the attorneys repsrenting the estate of Enos 

Ray Hart. deceased, that only one-babf of the community portion of the eatate of Enos Ray Hart is taxable, 

That the tax Ls determined by the 8ule established in 

your Opinion No. V-704. T&s attorneya, however, admit that there is a suktant6ab difference between the 

wlbb made and left ky Enos Ray Hart, deceased, and the 

community and mutual bst caili of T. G. Hendrick and 

wife. We &all, therefore, tlaank you to advise in the 

premises.’ : 

Artbcb 7117, V.C.S., declares that *All property wtthin the jurlsdfctlon of tl&s State . e o whfcb ohall pass absolutely or 

in trust by wbbb m e e skabb, upon pasing ~ e . be subject to a tax for 

the bmmflt d the State’n General Revenlae Fund. , , .? If any part 

of Mrs. HartOr one-half fnterert in the fommunhty estate passed to 

third patties ‘%y will* within tbe meaning 06 the above quoted portion of Article 7117,,your construction Ls correct, Otherwise, no 

part of her one-half interest bn tlue community estate is subject to 

tax. 

The prov&aicpns of Mr. ,Hast’a will do, of COUPSB, differ 

from the pi~ovis8ons of Mr. Handby’s w$bb and from the provisions 

of MP, HendrickOs wall but the on&y conslusfon consistent with the 

holding of Att’y Gene Op. O-5557 (1943) and Att@y Germ. Op. V-704 

(1748) is that no part of Mrs. Hartb Pnterest in the community estate can be regarded aa having pasred by the wlbl of Mr. Hart in 

the sease that it is subjest to tax under Artbcbe 7117. In Opinion 

O-5557, the nurvlvlng wife abAowed her &are of the community to 

pass into th testamentary trust created by Mr. Handly’s wlbl. Under the provisions of the trust, Mrs. Handday received a portion of 

tke trust income’for bbfe, After her death, otbr ~neficbarios were 

to receive the enttre income and, &lmately, the corpus of the trust. 

Mrs. Handly’s relllnqutshment of her community interest was viewed 

as a Wan&e or gfft by ksr to take affect after her death. Therefore, the twnder cot&~ have been taxable affir hurband’s deatb 

as pamring by his wllb. 

In Opinicm V-704, the rurv&vAn~ wlb bad mecotod with 

Mr. Hendrick tlw jcdmt w&M and trust inetr%tneatt wkbcb was admbtted 

to probate after Mr. Hendolak’~ death as kls bast wbbb and testament. 

MS. Hetirkk’s wbbl dbrposed of kke eetli~e cotnrnu8bbty estate and 
Hon. Robert S. Calvert, Page 3 (V-1146) 

established a million dollar trust fund. Various beneficiaries were 

to receive stated percentages of the income and, ultimately, of the 

corps of the trust, Optnion V-704 held that by the terms of the 

joint, mutual, and contrrctcaal will Mrs. Handly had made a transfer or gift of part of Iu?r .&WC of the community estate to the trust 

fund, the gift to take effect upon the happening of a limiting condition precedent, to wit, her husbaad’s death, not hers. Such transfer was, therefore, not subject to tax at Mr. Hendrick’s death as 

passing by his will. 

After Mr. Hart’s death, his surviving wife elected to 

take under his will. By her affirmative act in so electing, she effected a gift of such part of her share of the community estate as 

has passed to third parties. Such p’opeaty was, therefore, not subject to tax at Mr. Hart’s death as passing by his will. 

SUMMARY 

WhePe the surviving spouse elects to take less 

than his or her share of the community property under a deceased spouse’s will disposing of the entire 

community eetalte, no psrt of the surviving spouse’s 

one-half interest in the community estate is subject 

to inheritance taxes as passing by the will of the deceased spouse. 

Yours very truly, 

PRICE DANIEL 

Attorney General 

APPROVED: 

W. V. Geppsrt 

Taxation Dlvlsion 

Assistant 

Jesse P. Luton, Jr. 

Assistant 

Charles D. Methews 

First Assistant 

MMC /mwb