
    In the Matter of the Estate of Louis Kahn, Deceased. State Tax Commission, Appellant; Rose Kahn, as Executrix of Louis Kahn, Deceased, Respondent.
   In this proceeding to fix the New York estate tax, the State Tax Commission appeals from an order of the Surrogate’s Court, Kings County, dated August 27, 1974, which modified a prior pro forma order of said court by fixing the tax at $1,920.04. Order affirmed, with $20 costs and disbursements. The full marital deduction allowed in this estate is based on property passing to the surviving spouse dehors the will, principally personal property owned jointly by the testator and his spouse. Although the testator and his spouse agreed, in their joint will, to dispose of their property as therein provided after the death of the survivor, that agreement does not deprive the surviving spouse of the benefit of the marital deduction allowed herein (Internal Revenue Code [US Code, tit. 26, § 2056, subd (e), par (5)]; Tax Law, § 955; Matter of Tricarico, 68 Misc 2d 1018; Matter of Basch, 41 Misc 2d 773; United States v Ford, 377 F2d 93, 96; Revenue Ruling 71-51, [Int Rev Bull 1971-5, 15]). Moreover, prior to the Surrogate’s holding that the testator’s estate is entitled to the maximum marital deduction for property passing to the surviving spouse from the adjusted gross estate as to New York estate tax, such allowance was granted by the District Director of the Internal Revenue Service to this estate, as to the Federal estate tax. That determination by the District Director on behalf of the United States Treasury Department was binding on appellant as to the New York estate tax, unless appellant could establish by a preponderance of evidence that the Federal determination was clearly erroneous (Tax Law, §§ 955, 961; Matter of Behm, 19 AD2d 234, affd 14 NY2d 826; Matter of Tricarico, 68 Misc 2d 1018). We agree with the Surrogate that appellant has not met that burden. Hopkins, Acting P. J., Martuscello, Christ, Munder and Shapiro, JJ., concur.  