Alice B. Gist v. United States

The facts of this case are reported at 296 F.Supp. 526 (S.D.Cal.1969). In summary, Mrs. Gist brought an action for refund of an overpayment of federal income taxes. Able use of pretrial procedures allowed counsel to present to the trial court the single issue in the case on cross motions for summary judgment. The court granted a partial refund to Mrs. Gist. The Government appeals from that decision. We affirm.

At issue is the tax consequences of Mrs. Gist’s election to take under her husband’s will rather than claim and retain all her property rights under California community property law. All of the property involved herein was community property under California law and had been acquired after July 29, 1927. California Civil Code, § 161a as amended that year provides that as to community property acquired thereafter, a wife has a “present, existing and equal interest.”

If a husband provides by will for the disposition of all the community property, and if his wife approves, her election to take under the terms of the will is an election which involves the retention or exchange of a property right which exists both before and after the death of her husband. Estate of Wyss,…