Some gifts in trust that are intended to qualify for the marital deduction may fail because the surviving spouse’s power of appointment could lapse due to incapacity. For instance, suppose a marital deduction trust’s provisions dictate that the trust must terminate upon the surviving spouse’s incapacity and that the trust assets must be distributed as though the surviving spouse had predeceased the trust’s grantor. This trust could not qualify for the marital deduction because the surviving spouse’s power of appointment could end before his or her death.