The Collision between Crts and the Upc Elective Share

Last spring the IRS issued Rev. Proc. 2005-24, applicable to the qualification of inter vivos charitable remainder annuity trusts (CRATs) and charitable remainder unitrusts (CRUTs) when the surviving spouse can satisfy her statutory elective share from the assets of a charitable remainder trust (CRT). The revenue procedure was intended to provide a safe harbor rule under which the IRS would ignore the elective right in its determination of a trust's qualification and continuation as a CRT. The article analyzes the revenue procedure, examines the policies behind both CRTs and the UPC elective share, and suggests that the revenue procedure is under-inclusive in its focus and looks to the wrong individual for a remedy