Estate of Brubaker

21 Cal.App.3d 768 (1971) 98 Cal. Rptr. 762 Estate of GEORGE G. BRUBAKER, Deceased.

HOUSTON I. FLOURNOY, as State Controller, Petitioner and Appellant,

v.

BANK OF AMERICA, as Executor, etc., Objector and Respondent.

Docket No. 37681. Court of Appeals of California, Second District, Division Two.

December 2, 1971. [769] COUNSEL

Myron Siedorf, Walter H. Miller and Phyllis Kelly Fairbanks for Petitioner and Appellant.

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 [770] 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 13551 provides in relevant part that upon the death of a spouse (a) none of the community property transferred to a spouse is subject to inheritance tax, and (b) all the decedent's half interest in the community property passing to anyone other than the surviving spouse becomes subject to inheritance tax.