Estate of Brubaker

Newlin, Tackabury & Johnston and Stuart W. Lapp for Objector and Respondent.

OPINION

FLEMING, J.

The State Controller appeals an order of the probate court fixing inheritance tax in the estate of George G. Brubaker.

George died on 18 April 1967. His estate consisted entirely of community property. In his will George put his wife, Ruth, to a widow's election: he declared his intention to dispose by will of all community property, including Ruth's share. If Ruth should elect to take the community property share accorded her by law she would receive nothing under the will, and George's share of the community property would go to their daughter Barbara. If Ruth should elect to forego her community property rights and take under the will, she would receive a family allowance, the house and furniture, and a life estate in the balance of the community property with the remainder going to daughter Barbara. Ruth elected to take under the will.

Probate Code section 201 provides that upon the death of a spouse, half the community property belongs to the surviving spouse, and the other half becomes subject to the testamentary disposition of decedent. Revenue and Taxation Code section…