Reg. § 20.2056A-8 Special rules for joint property.
(a) Inclusion in gross estate
(1) General rule If property is held by the decedent and the surviving spouse of the decedent as joint tenants with right of survivorship, or as tenants by the entirety, and the surviving spouse is not a United States citizen (or treated as a United States citizen) at the time of the decedent's death, the property is subject to inclusion in the decedent's gross estate in accordance with the rules of section (general rule for includibility of joint interests), and section (special rule for includibility of certain joint interests of husbands and wives) does not apply. Accordingly, the rules contained in section and govern the extent to which such joint interests are includible in the gross estate of a decedent who was a citizen or resident of the United States. Under , the entire value of jointly held property is included in the decedent's gross estate unless the executor submits facts sufficient to show that property was not entirely acquired with consideration furnished by the decedent, or was acquired by the decedent and the other joint owner by gift, bequest, devise or inheritance. If the decedent is a nonresident not a citizen of the United States, the rules of this apply pursuant to sections , , , and .
(2) Consideration furnished by surviving spouse For purposes of applying section , in determining the amount of consideration furnished by the surviving spouse, any consideration furnished by the decedent with respect to the property before July 14, 1988, is treated as consideration furnished by the surviving spouse to the extent that the consideration was treated as a gift to the spouse under section , or to the extent that the decedent elected to treat the transfer as a gift to the spouse under section (to the extent applicable). For purposes of determining whether the consideration was a gift by the decedent under section , it is presumed that the decedent was a citizen of the United States at the time the consideration was so furnished to the spouse. The special rule of this is applicable only if the donor spouse predeceases the donee spouse and not if the donee spouse predeceases the donor spouse. In cases where the donee spouse predeceases the donor spouse, any portion of the consideration treated as a gift to the donee spouse/decedent on the creation of the tenancy (or subsequently thereafter), regardless of the date the tenancy was created, is not treated as consideration furnished by the donee spouse/decedent for purposes of section .
(3) Amount allowed to be transferred to QDOT If, as a result of the application of the rules described above, only a portion of the value of a jointly-held property interest is includible in a decedent's gross estate, only that portion that is so includible may be transferred to a QDOT under section . See and , Example 3.
(b) Surviving spouse becomes citizen of this section does not apply if the surviving spouse meets the requirements of section . For the definition of resident in applying section , see .
(c) Examples The provisions of this section are illustrated by the following examples:
Example 1. In 1987, D, a United States citizen, purchases real property and takes title in the names of D and S, D's spouse (a noncitizen, but a United States resident), as joint tenants with right of survivorship. In accordance with , one-half of the value of the property is a gift to S. D dies in 1995. Because S is not a United States citizen, the provisions of section are determinative of the extent to which the real property is includible in D's gross estate. Because the joint tenancy was established before July 14, 1988, and under the applicable provisions of the Internal Revenue Code and regulations the transfer was treated as a gift of one-half of the property, one-half of the value of the property is deemed attributable to consideration furnished by S for purposes of section . Accordingly, only one-half of the value of the property is includible in D's gross estate under section .
Example 2. The facts are the same as in Example 1, except that S dies in 1995 survived by D who is not a citizen of the United States. For purposes of applying section , D's gift to S on the creation of the tenancy is not treated as consideration furnished by S toward the acquisition of the property. Accordingly, since S made no other contributions with respect to the property, no portion of the property is includible in S's gross estate.
Example 3. The facts are the same as in Example 1, except that D and S purchase real property in 1990 making the down payment with funds from a joint bank account. All subsequent mortgage payments and improvements are paid from the joint bank account. The only funds deposited in the joint bank account are the earnings of D and S. It is established that D earned approximately 60% of the funds and S earned approximately 40% of the funds. D dies in 1995. The establishment of S's contribution to the joint bank account is sufficient to show that S contributed 40% of the consideration for the property. Thus, under paragraph , 60% of the value of the property is includible in D's gross estate.
[T.D. 8612, 60 FR 43549, Aug. 22, 1995]