The Trust Advisor Blog makes several interesting points about marital trusts during this year without estate taxes. The context is the estates of George Steinbrenner and John Kluge, who were survived by spouses.
If we knew that there would be no estate tax this year, and there would be one ever after, the best result is to avoid marital deduction trusts altogether (assuming that the surviving spouse lives until the return of the estate tax). A traditional marital trust will be fully taxed in the survivor's estate. So will a QTIP trust. How's that? Wouldn't the executor elect against the marital deduction so that the entire QTIP is treated as if it subject to estate tax this year? He would if he could, I suppose, but without the need to file Form 706, there's no way to communicate the election to the IRS.
There's been no guidance from the Service on this problem as yet.