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ESTATE OF GOLDWATER

No. 867, Docket 75-4277.

539 F.2d 878 (1976)

ESTATE of Leo J. GOLDWATER, Deceased. Irving D. LIPKOWITZ, and Lee J. Goldwater, Executors, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

United States Court of Appeals, Second Circuit.

Decided June 29, 1976.

Attorney(s) appearing for the Case

Irving D. Lipkowitz, New York City (Lipkowitz & Plaut, Roy Plaut, Peter Jason, New York City, of counsel), for petitioners-appellants.

William S. Estabrook, III, Atty., Tax Div., Dept. of Justice, Washington, D.C. (Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, Elmer J. Kelsey, Attys., Tax Div., Dept. of Justice, Washington, D.C., of counsel), for respondent-appellee.

Before HAYS and MULLIGAN, Circuit Judges, and PALMIERI, District Judge.

MULLIGAN, Circuit Judge:

This appeal presents this court with the problem of determining who is the "surviving spouse" of the decedent Leo J. Goldwater for purposes of the estate-tax marital deduction authorized by the Internal Revenue Code of 1954, 26 U.S.C. § 2056.1

The facts have been stipulated and are as follows: On June 20, 1946 Leo married his first wife Gertrude in New York City, where they resided as man and wife...

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