376 U.S. 503 (1964)
George Richards died a resident of California on May 27, 1951.1 Petitioners are the widow-executrix and testamentary trustee under his will.2 Acting under the Probate Code of California, the state court on June 30, 1952 allowed the widow the sum of $3,000 per month from the corpus of the estate for her support and maintenance beginning as of May 27, 1951 and continuing for a period of 24 months from that date.3 Under the terms of the order an allowance of $42,000 had accrued during the 14 months since her husband’s death and this amount plus an additional $3,000 per month for the remainder of the two-year period making a total of $72,000 was in fact paid to the widow as widow’s allowance.4
On the federal estate tax return filed on behalf of the estate the full $72,000 was claimed as a marital deduction under the Internal Revenue Code of 1939.5 The deduction was disallowed as was a claim for refund after payment of the deficiency and the present suit for refund was then brought in the District Court.6 The District Court granted summary judgment for the United States and the Court of Appeals affirmed.7
The Supreme Court granted certiorari because of an asserted conflict with a decision of the Court of Appeals for the Fifth Circuit.8
Whether the allowance provided by California law for the support of a widow during the settlement of her husband’s estate is a terminable interest?9
Subsection (B) adds the qualification that interests defined therein as “terminable” shall not qualify as an interest in property to which the marital deduction applies.10 Where, upon the lapse of time, upon the occurrence of an event or contingency, or upon the failure of an event or contingency to occur, such interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed with respect to such interest.11 This rule applies if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse).12 It also applies if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse.13
Yes. Under California law the right to a widow’s allowance is not a vested right and nothing accrues before the order granting it.14 The right to an allowance is lost when the one for whom it is asked has lost the status upon which the right depends.15 If a widow dies or remarries prior to securing an order for a widow’s allowance, the right does not survive such death or remarriage.16
As of the date of Mr. Richards’ death, therefore, the allowance was subject to failure or termination upon the occurrence of an event or contingency.17 That the support order was entered in this case 14 months later does not change the defeasible nature of the interest.18 The allowance is thus a terminable interest within the meaning of the statute and does not qualify for the marital deduction.19
The allowance provided by California law for the support of a widow during the settlement of her husband’s estate is a terminable interest.20
Related opinions on this issue
Mr. Justice Douglas dissents from the majority opinion in this case.21 He does not agree that the widow's allowance is a terminable interest that fails to qualify for the marital deduction under the Internal Revenue Code of 1939.22 His position diverges from the Court's holding that the interest is subject to failure upon the occurrence of an event or contingency such as death or remarriage of the widow.23
The bottom line of his dissent is that the deduction should be allowed for the amounts paid to the widow under California law.24