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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 andprovides 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.dhave 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, Lssubject to the inlaerit

### ancc tax Levied 

### ur&r Agtkle 7117. It ir the contention 

### ofthe 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 Lsdetermined by 

### the 8ule established in your Opinion No. V-704. T&s attorneya, however, admit that there is a 

### suktant6ab difference between the wlbbmade and 

### left ky Enos 

### Ray Hart, deceased, and the community 

### and mutual bst 

### caili of T. G. Hendrick 

### and wife. We &all, therefore, tlaankyou toadvise in the premises.’ : 

### Artbcb 7117, V.C.S., declares that *All property wtth

### in thejurlsdfctlon of tl&s State

. eowhfcb ohall pass absolutely or 

### in trust bywbbbm

eeskabb,

### 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 06the above quoted portion ofArticle 7117,,your 

### construction Lscorrect, Otherwise, no 

### part ofher one-half interest bntluecommunity 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$bband from the provisions of MP, HendrickOs wall but

### the on&yconslusfon consistent with the holding 

### ofAtt’y Gene Op. O-5557 (1943) 

### andAtt@yGerm.Op. V-704 (1748) is that no part ofMrs. 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 abAowedher &are of 

### the community to 

### pass into th testamentary trust created by Mr. Handly’s wlbl. Under the provisions of the trust, Mrs. Handdayreceived 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 

### tlwjcdmtw&M and trust inetr%tneattwkbcb was admbtted to 

### probate after Mr. Hendolak’~ death as kls bastwbbb and testament. MS. Hetirkk’s wbbldbrposed ofkkeeetli~e cotnrnu8bbty estate andHon. 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 

### ofthe 

### 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 

### ofher 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