Section 19-5-6

Division of qualified terminable interest property trust into separate share trusts to effectuate allocation of grantor's, decedent's, or surviving spouse's GST exemption; payment of estate taxes.

When a grantor or decedent transfers property into a trust for which an election is made or to be made pursuant to Section 2056(b)(7) or 2523(f) of the Internal Revenue Code to treat such property as qualified terminable interest property (the "QTIP trust"), and when a grantor or fiduciary makes an election pursuant to Section 2652(a)(3) of the Internal Revenue Code to have the grantor or decedent creating such QTIP trust deemed to be the transferor of a portion, but not all, of such QTIP trust for GST purposes, and when a grantor or fiduciary makes an allocation pursuant to Section 2631 of the Internal Revenue Code of any portion of such grantor's or decedent's GST exemption to such portion of the QTIP trust for which a Section 2652(a)(3) election is made or to be made, or to property passing from such portion of the QTIP trust to a trust or person that is a remainder beneficiary of such portion of the QTIP trust at the death of the surviving spouse of the grantor or decedent, and when the instrument creating the QTIP trust does not specifically prohibit a fiduciary from dividing such QTIP trust into separate share trusts, a fiduciary shall divide such QTIP trust into two or more separate share trusts, one of which shall be equal to that portion of the QTIP trust for which a Section 2652(a)(3) election is made or to be made, and the other one or more share trusts shall be divided in such manner as the fiduciary deems appropriate either (1) to effectuate and carry out the allocation of the grantor's or decedent's GST exemption to such portion of the QTIP trust for which a Section 2652(a)(3) election is made, or to property passing from such portion of the QTIP trust to a trust or person that is a remainder beneficiary of such portion of the QTIP trust at the death of the surviving spouse, or (2) to effectuate and carry out the allocation of the surviving spouse's GST exemption to one or more of the share trusts created from the QTIP trust, or to property passing from such one or more share trusts to a trust or person that is a remainder beneficiary of such share trust(s) at the death of the surviving spouse. Upon the death of the surviving spouse of the grantor or decedent, the fiduciary shall pay the estate taxes attributable to the share trust(s) to which an allocation of the GST exemption is made from any other share trust created hereunder to which no GST exemption is allocated, or from one of the other share trusts created hereunder, unless the trust instrument or the will of the surviving spouse specifically provides otherwise; provided, however, that to the extent possible, estate taxes shall not be paid in the manner provided above if to do so could result in an increase in the property subject to the GST on account of such payment of estate taxes. Other terms and provisions of each such separate share trust created from the QTIP trust shall, when taken together as a whole, be substantially identical to the original QTIP trust. In general, this section contemplates that a fiduciary will divide the original QTIP trust into two or more separate share trusts when it may be desirable to allocate both the GST exemption of the grantor or decedent and the GST exemption of the surviving spouse of such grantor or decedent to the original QTIP trust or a share thereof. Moreover, this section contemplates that a fiduciary will pay the estate taxes attributable to the original QTIP trust from a share trust to which no GST exemption is allocated unless to do so could result in an increase in the amount subject to the GST of a share trust to which a GST exemption is allocated.

(Acts 1988, No. 88-340, p. 516, §6.)