GEORGE BONGAARDS vs. NINA MILLEN [Note 1] & others. [Note 2]

SOSMAN, J. The plaintiff filed a complaint in the Probate and Family Court, seeking a declaration that certain property held in trust by his deceased wife, Jean Bongaards (Jean), should be considered part of her estate for purposes of determining his elective share under G. L. c. 191, § 15, the statute permitting a surviving spouse to waive will provisions and elect instead to receive a statutory portion of the estate of the deceased spouse. The plaintiff's first amended complaint also asserted that assets in a bank savings account maintained by Jean should be subject to his elective share. Acting on cross motions for summary judgment, the judge rejected both claims and entered a judgment dismissing the complaint. The plaintiff appealed, and the

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Appeals Court affirmed in part and reversed in part. See Bongaards v. Millen, 55 Mass. App. Ct. 51, 60-61 (2002). The Appeals Court concluded that the prospective rule announced by this court in Sullivan v. Burkin, 390 Mass. 864, 867 (1984) (Sullivan), which treats assets of certain types of trusts as part of a decedent's estate for purposes of G. L. c. 191, § 15, did not apply to Jean's trust, but that the bank savings account should have been included in the elective share estate. See Bongaards v. Millen, supra at 60, 57. We granted the plaintiff's application for further appellate review. We now conclude that the result reached by the Appeals Court was correct, but we reach that same result for different reasons.

1. Facts. In 1978, Josephine D'Amore, who was Jean's mother, created the 291 Commonwealth Avenue Trust (trust) and conveyed to the trust real estate consisting of an apartment building located at that address in Boston. D'Amore declared herself the sole trustee and sole beneficiary of the trust during her lifetime. The terms of the trust provided that, on D'Amore's death, her daughter Jean would, if she accepted, become the sole trustee and sole lifetime beneficiary.

D'Amore intended the trust property to pass solely to her children and then to her grandchildren. The trust incorporated by reference a schedule of beneficiaries, which provided D'Amore a life estate and, following the termination of D'Amore's life estate, a life estate to Jean, and then to D'Amore's living grandchildren "and/or to the living brother and sisters of Jean Bongaards in such proportion as Jean Bongaards shall appoint by an instrument in writing and delivered to the Trustee or by her Last Will and Testament." Should Jean fail to appoint one or more successor beneficiaries at the time of her death, the trust property was to be divided into equal shares to be paid to each then living grandchild, and the trust was to terminate. After D'Amore's death and until Jean appointed one or more successor beneficiaries, the terms of the trust permitted Jean, as sole trustee and beneficiary then entitled to a present interest, to amend the terms of the trust or to terminate the trust and vest title to the trust property in herself individually.

In 1979, D'Amore executed a deed, signed by her as an individual, which purported to convey the real estate to Jean.

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The 1979 deed was drafted by a different attorney, not by the attorney who had drafted the 1978 deed and trust, and the 1979 deed made no reference to the trust. D'Amore died later that year. Jean and the plaintiff, who had lived in one of the apartments at 291 Commonwealth Avenue since their marriage in 1965, continued to live there, and Jean managed the property until her death.

In 1988, Jean executed a certificate of acceptance of her appointment as trustee. This document apparently was never recorded. On July 19, 1996, Jean executed the following documents: a second acceptance of her appointment as trustee (which subsequently was recorded); an appointment of the remainder interest in trust in favor of her sister, Nina Millen; an appointment of Nina Millen as successor trustee; and an amendment inserting a so-called spendthrift clause into the trust document. At the same time, Jean executed a confirmatory deed of the property at 291 Commonwealth Avenue to herself as trustee. That document's stated purpose was "to clarify any such potential uncertainty or conflict" stemming from the 1979 deed and "to the extent that clear title [to the property] is not already held by said Trust or the Trustee thereof, then it shall be so transferred to the said Trustee by virtue of this deed." Jean died ten days later on July 28, 1996.

During her lifetime, Jean maintained a bank savings account in the name of "Jean A. Bongaards ATF [as trustee for] Nina Millen." Jean retained the power to withdraw funds from the account at any time. Before her death, Jean informed Millen of the account's existence and directed the bank to send account statements to Millen. At the time of Jean's death, assets in the account totaled $39,905. Her will stated that she intentionally had not provided for her husband, the plaintiff.

2. Discussion. The plaintiff timely asserted his right to a share of Jean's estate pursuant to G. L. c. 191, § 15, which provides, in relevant part, that, "[t]he surviving husband or wife of a deceased person . . . within six months after the probate of the will of such deceased, may file in the registry of probate a writing signed by him or by her, waiving any provisions that may have been made in it for him or for her, or claiming such portion of the estate of the deceased as he or she is given the

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right to claim under this section . . . ." The question before us is whether Jean's estate, for purposes of determining the plaintiff's statutory share, includes the property located at 291 Commonwealth Avenue and the funds in the bank savings account.

a. The trust property. The plaintiff's claim with respect to the trust property is premised on the following alternate arguments: (1) that Jean owned the property free of trust; (2) that Jean acted as though she owned the property free of trust and her estate is now estopped from claiming the existence of a trust in order to avoid her husband's statutory right to a share of the property; and (3) that Jean's extensive control over the property under the provisions of the trust amounted in substance to full ownership and thereby warranted the property's inclusion in her estate subject to his elective share. We consider each argument in turn.

(i) Property subject to the trust. We reject the plaintiff's contention that Jean held the property free of trust. The trust was a valid inter vivos trust when created by D'Amore in 1978. It was not void ab initio for lack of beneficiaries. The schedule of beneficiaries, incorporated by reference in the trust, identified the beneficiaries and their respective interests and was signed by D'Amore, who was the settlor, sole trustee, and, at the time, only beneficiary of the trust. There is no general requirement that beneficiaries, present or future, must acknowledge a trust before it becomes valid, see Aronian v. Asadoorian, 315 Mass. 274, 276-277 (1943), nor did the terms of this trust require the signatures of the listed beneficiaries in order for the trust to become effective.

The deed purportedly executed by D'Amore in 1979 did not convey ownership of the trust property to Jean individually. As of 1979, D'Amore held the property as trustee for the beneficiaries of the trust, and she lacked power to convey the property in her individual capacity. See Rogaris v. Albert, 431 Mass. 833, 836 (2000).

We reject the plaintiff's argument that the 1979 deed, together with Jean's subsequent conduct, should be considered as manifestations that D'Amore intended to convey title to the property to Jean and that Jean acquiesced to this intent. The

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plaintiff's reliance on language in Amory v. Amherst College, 229 Mass. 374, 385 (1918), that "a deed should be so construed as to carry out the intent of the parties unless such construction is manifestly repugnant to the terms of the grant," is misplaced. At issue in that case was the proper construction of ambiguous deeds that created two distinct trusts. See id. at 384-385. The decision did not suggest that a deed, clear on its face, validly may convey property not owned by the grantor. Where, as here, the grantor has nothing to convey, a mutual intent to convey and receive title to the property is beside the point. The purported conveyance is a nullity, notwithstanding the parties' intent. [Note 3]

Nor could the 1979 deed, by itself, terminate the trust, which under the express terms of its art. XII could only be terminated by written notice and a subsequent transfer to the lifetime beneficiaries. "The law of Massachusetts is plain that a valid trust, once created, cannot be revoked or altered except by the exercise of a reserved power to do so, which must be exercised in strict conformity to its terms." Phelps v. State St. Trust Co., 330 Mass. 511, 512 (1953). We conclude, as did the judge and the Appeals Court, that the property was held by Jean in a valid trust from the time of D'Amore's death in 1979 until Jean's death in 1996.

(ii) Estoppel. There is no merit to the plaintiff's argument, articulated in various ways, that traditional equitable principles of estoppel should persuade us to ignore the trust's existence and to treat Jean as the individual owner of the property. Circumstances that may give rise to an estoppel are (1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission. See Cleaveland v. Malden Sav. Bank, 291 Mass. 295, 297-298 (1935). See also Department of Revenue v. W.Z., 412 Mass. 718, 720-721 (1992). The plaintiff's assertions that Jean conducted the

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management of the property as an individual, filed income taxes on the property as an individual, and obtained insurance on the property as an individual, even if true, do nothing to demonstrate that Jean's conduct was intended to induce the plaintiff's belief that he would receive a share of the trust property on her death. In fact, the plaintiff has conceded that he fully understood that Jean held the property in trust for the children and grandchildren of D'Amore. The plaintiff therefore cannot establish a claim based on equitable estoppel.

(iii) Inclusion of trust property in the elective share estate pursuant to Sullivan. We now turn to the plaintiff's argument that the property, regardless of the fact that it was held by Jean at all times in a valid inter vivos trust created by her mother in 1978, should nevertheless be part of Jean's estate subject to his elective share, pursuant to principles expressed in Sullivan. Discussion of the Sullivan decision will frame the issue.

Until 1984, the rule of this Commonwealth was that spouses had an absolute right to dispose of any or all of their personal property in their lifetime, with the result that it would not form part of their "estate" subject to their spouse's elective share at their death. See Kerwin v. Donaghy, 317 Mass. 559, 571 (1945). It was thus possible for a husband effectively to disinherit his wife, without her knowledge or consent, by transferring his property into a trust created for his own benefit during his lifetime, with the sole purpose of removing the property from his estate at death and thereby preventing his wife from asserting her rights under G. L. c. 191, § 15. See id. This court's decision in Sullivan eliminated this option.

In Sullivan, the husband had conveyed real estate to an inter vivos trust, with himself as trustee. He retained the right to the income, as well as the right to revoke the trust at any time, and directed that, on his death, the principal and any undistributed income were to be paid to two other persons, neither of whom was his wife. The husband intentionally left no provision in his will for his wife. See id. at 865. Considering the wife's claim to an elective share of the trust, the court concluded that, because Kerwin v. Donaghy, supra, had been the law for almost forty years, and because counsel and clients were entitled to rely on that precedent, the wife was not entitled to a statutory share of

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the trust assets. Sullivan, supra at 870-871. The court went on to state:

"For the future, however, as to any inter vivos trust created or amended after the date of this opinion, we announce that the estate of a decedent, for the purposes of G. L. c. 191, § 15, shall include the value of assets held in an inter vivos trust created by the deceased spouse as to which the deceased spouse alone retained the power during his or her life to direct the disposition of those trust assets for his or her benefit, as, for example, by the exercise of a power of appointment or by revocation of the trust" (emphasis added).

Id. at 867. Rather than engage in the difficult analyses other jurisdictions had employed to prevent a spouse's evasion of the elective share statute by way of an inter vivos trust (e.g., analysis of the deceased spouse's "motive" or "intention," or the "illusory" or "fraudulent" nature of the spouse's creation of the trust), the court prospectively adopted a bright-line rule that a spouse's creation of a trust over which the spouse alone retained control would not suffice to defeat the surviving spouse's interest in the property placed in that trust. Id. at 872-873, citing Newman v. Dore, 275 N.Y. 371, 379 (1927), and Staples v. King, 433 A.2d 407, 411 (Me. 1981).

The Appeals Court considered the applicability of the Sullivan rule to the trust property at issue here and concluded that, because the trust came into existence in 1978, it was not governed by that prospective rule. See Bongaards v. Millen, supra at 57 & n.14. This conclusion is not correct. Jean's addition of a spendthrift clause to the trust in 1996 made the trust subject to the rule announced in Sullivan, which explicitly applies to trusts "created or amended" subsequent to the date of that decision, January 23, 1984.

Under that rule, however, the trust property at issue here is still not subject to the plaintiff's elective share for the simple reason that the trust was created by a third party, D'Amore, and not by Jean. [Note 4] The rule announced in Sullivan applies only to assets of a trust "created during the marriage by the deceased

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spouse." Id. at 872. This limitation on the rule announced in Sullivan was based, in part, on principles set forth in the then current publication of the American Law Institute on the issue of a surviving spouse's rights to assets of an inter vivos trust held by the deceased spouse, the Restatement (Second) of Property: Donative Transfers, Supplement to Tent. Draft No. 5 (1984), now embodied in the Restatement (Second) of Property: Donative Transfers § 13.7 (1986). See Sullivan, supra at 869. Section 13.7 treated trust assets as assets of a deceased spouse for purposes of determining a surviving spouse's elective share "if the deceased spouse was both the donor and donee of a general power of appointment that was exercisable by the donee alone, unless the controlling statute provides otherwise." Assets in a trust created by a third person were specifically excluded, even though the deceased spouse may have held a general power of appointment. See Restatement (Second) of Property: Donative Transfers, supra at § 13.7 comment a (section applies "if, and only if, the donor and donee were the same person," and assets are not part of elective share estate "when the donor and donee were different persons"). Accordingly, the rule of Sullivan does not apply to the trust established by D'Amore.

The plaintiff contends that, even though the property was placed in the trust by D'Amore and not by Jean, Jean's control over the property under the terms of the trust was so great that the property should be included in Jean's estate for purposes of G. L. c. 191, § 15. [Note 5] This contention is not a valid basis for ignoring the restrictions of the Sullivan rule, which is already premised on the spouse having effective control over the trust and its assets. Sullivan, supra at 867 (rule applies to assets in trust created by spouse "as to which the deceased spouse alone retained the power during his or her life to direct the disposition

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of those trust assets for his or her benefit, as, for example, by the exercise of a power of appointment or by revocation of the trust"). Here, Jean did not have a greater degree or different form of control over the trust than the degrees and forms of control on which the Sullivan rule is expressly predicated.

(iv) Proposed modification of the Sullivan rule to include all "marital property" in the elective share estate. A more expansive rationale for reaching the result urged by the plaintiff has been advanced by the amicus, the Women's Bar Association of Massachusetts. [Note 6] That rationale, although echoing some of the Sullivan court's reasons for overruling Kerwin v. Donaghy, supra, should not be extended in the far-reaching and literal manner now suggested. Sullivan noted that, since the court's decision in Kerwin, "[t]he interests of one spouse in the property of the other have been substantially increased upon the dissolution of a marriage by divorce." Sullivan, supra at 872. In the wake of those changes in the divorce laws, the court observed that "[i]t is neither equitable nor logical to extend to a divorced spouse greater rights in the assets of an inter vivos trust created and controlled by the other spouse than are extended to a spouse who remains married until the death of his or her spouse" (emphasis added). Id. The amicus suggests -- and one of today's dissenting opinions essentially agrees -- that we should now ignore the limiting language in that observation from Sullivan and simply include in the elective share estate any property, including any trust assets, that would have been treated as marital property to be divided on divorce. [Note 7]

Before turning to the specific defects in that proposed equation

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of property rights on divorce with property rights upon a spouse's death, we note a fundamental flaw in the entire analysis, namely, that it completely ignores basic principles of statutory construction. At issue here is the definition of the term "estate of the deceased" in G. L. c. 191, § 15. Under the statute, a surviving spouse may waive the provisions of the decedent spouse's will and "claim[] such portion of the estate of the deceased as he or she is given the right to claim under this section" (emphasis added). Id. The section then goes on to provide the surviving spouse with $25,000, plus the income from or outright ownership of specified portions of the remaining real and personal property, with both the fractional portions and the nature of the interest depending on the presence or absence of issue and other kindred. Id. The question before us is what "estate" the Legislature intended as the "estate" to be divided under that formula. We are not deciding a common-law issue of property rights, which we may update according to our views of the appropriate development of that common law, but are instead interpreting a statute. Conspicuously absent from the amicus brief (and from Justice Greaney's dissent) is any analysis of what the Legislature intended to include in the "estate" to be divided under G. L. c. 191, § 15. We see no basis for believing that the Legislature's use of the term "estate of the deceased," which has been in the statute in its present form since 1956 (see St. 1956, c. 316, § 2), [Note 8] somehow intended to incorporate

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principles of property division upon divorce that were not made part of G. L. c. 208, § 34, until 1974. See St. 1974, c. 565.

Indeed, there does not appear to be any ambiguity in the Legislature's use of the term "estate of the deceased" in G. L. c. 191, § 15. In context, "estate of the deceased" refers to the decedent's probate estate -- the will being waived by the surviving spouse would ordinarily be the operative instrument that would divide the decedent's probate estate, and a spouse dissatisfied with the will's provisions for that division could instead opt for the statutory division of that same "estate." Absent any ambiguity in the term "estate of the deceased" (and no such ambiguity has been identified in any of the briefs or in either of today's dissenting opinions), there would be no basis to interpret that term to mean anything other than the decedent's probate estate.

Regardless whether changing times and the modern array of possible will substitutes may make it advisable to expand the term beyond the mere probate estate, we are not at liberty to update statutes merely because, in our view, they no longer suffice to serve their intended purpose. This is particularly true when the Legislature itself has recently considered numerous proposals to modernize the elective share statute, with differing approaches regarding how the elective share should be harmonized with contemporary concepts of marriage and property, and has yet to adopt any of them. See Note, Marital Property Reform in Massachusetts: A Choice for the New Millennium, 34 New Eng. L. Rev. 261, 270-271, 337-338 (1999) (outlining various proposals to reform elective share statute submitted to Legislature between 1991 and 1999). That the current version of the statute is woefully inadequate to satisfy modern notions of a decedent spouse's obligation to support the surviving spouse or modern notions of marital property does not authorize us to tinker with the statute's provisions in order to remedy those inadequacies. It is up to the Legislature to choose between the complex -- and apparently controversial -- options for modernizing this outdated scheme, not up to us to

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modernize it piecemeal according to our views of what remedies should be made available to a disinherited spouse.

It could be argued that Sullivan already represents such a tinkering with the definition of "estate" for purposes of G. L. c. 191, § 15, and that ordinary principles of statutory construction should therefore not prevent us from continuing the process begun in Sullivan. However, that justification for a significant expansion of the term "estate" in G. L. c. 191, § 15, ignores the fact that Sullivan merely closed a loophole through which spouses had been able to evade § 15. As articulated in Sullivan, what was to remain part of the "estate" subject to the elective share was property that previously belonged to the deceased spouse. But for the spouse's artificially distancing the property from that "estate" by the creation of a trust while still, for all practical purposes, retaining absolute control over and use of the property, the property would have been part of the deceased spouse's probate, and hence the elective share, "estate." In other words, Sullivan kept in the elective share "estate" property that would ordinarily have been in that "estate," refusing to give effect to a spouse's attempt to remove that property from the elective share "estate" but still retain access to it by means of a "trust."

It is one thing for this court to plug loopholes to prevent a spouse's evasion of the elective share statute. It is quite another to expand the reach of the elective share statute itself and, by so doing, frustrate the intent of a third party who is a stranger to the marriage. The recognition in Sullivan that property in a trust created by a third party presents "a different situation" from property in a trust "created during the marriage by the deceased spouse," id. at 872, 873, was not some hypertechnical distinction. A third party has no obligation to support someone else's spouse, and property owned by a third party has never been part of someone else's spouse's elective share "estate." Thus, when a third party places that property in a trust, the property is not being removed -- artificially or otherwise -- from that elective share "estate." The property was never in that "estate" in the first place, and the only question before us is whether the settlor's giving of certain powers to a trustee who is (or later becomes) married will now, for the first time,

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place additional property into that elective share "estate" in contravention of the third-party settlor's plans with respect to the disposition of that property. [Note 9] The proposed revision of the definition of "estate" to include trust property that was never, prior to the trust's creation, the property of either spouse is not designed merely to prevent evasion of the elective share statute. Rather, it would represent a judicially created expansion of the reach of the statute. It goes far beyond the modest prophylactic measure announced in Sullivan and cannot be justified as a mere "extension" of Sullivan.

Nor do we see substantive merit to the proposed equation of the "estate" for purposes of the elective share with the marital property of the decedent that would have been divisible if the couple had divorced. Whatever the superficial appeal of equating the two, it is an equation that does not withstand scrutiny and, to the extent that the two situations should be treated equally, the proposed interpretation of the elective share "estate" would not accomplish that objective. While both death and divorce are comparable in the sense that both have the effect of depriving a person of his or her spouse, the similarities end there. Death is not divorce, and the problems posed by each of those two life-altering events are profoundly different. It should not surprise us that the law, be it modern or antiquated, does not view death as the equivalent of divorce, or that the Legislature has adopted quite differing rules governing the disposition of property following those two events. As such, we cannot simply take concepts developed under modern divorce statutes and engraft them onto the elective share statute.

On divorce, marital property is divided based on a judge's assessment of multiple factors -- length of the marriage, conduct of the parties, age, health, occupation, amount and sources of income, vocational skills, employability, liabilities, needs of the children, needs of the spouses, "and the opportunity

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of each for future acquisition of capital assets and income." G. L. c. 208, § 34. The division of marital property also takes into account "the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit." Id. An expansive approach to what constitutes marital property is appropriate and fair, where that marital property will then be divided equitably based on the contributions, needs, and circumstances of the two divorcing spouses. Under that approach, trust assets available to a spouse are included in the marital property subject to equitable division in the judge's discretion based on the § 34 factors. See Lauricella v. Lauricella, 409 Mass. 211, 213-217 (1991); Ruml v. Ruml, 50 Mass. App. Ct. 500, 511-512 (2000); Comins v. Comins, 33 Mass. App. Ct. 28, 30-32 (1992). However, those § 34 factors take into account the fact that an item of marital property has been acquired by way of gift or substantial contribution from an outside party -- while that fact does not take the asset out of the marital property to be divided, it can and does influence the disposition of that particular asset. See Williams v. Massa, 431 Mass. 619, 625-627 (2000) (no error where judge's property division awarded husband entirety of assets given to him by his parents); Tanner v. Tanner, 14 Mass. App. Ct. 922, 922-923 (1982) (fact that wife's parents provided down payment for marital home and paid off bulk of mortgage properly considered in awarding home to wife with minimal payment to husband, even though home was primary marital asset). Thus, while trust assets are treated as marital property for these purposes, the fact that they have been donated by someone else may be considered in determining how that marital property is to be fairly divided.

By comparison, the elective share statute grants the surviving spouse a fixed percentage of the elective share "estate," based solely on the surviving spouse's unilateral decision to reject the decedent's will. G. L. c. 191, § 15. There is no assessment of the surviving spouse's needs, or the equities of that elective share percentage, or the equities of applying that percentage to a particular trust that was created and funded by some third party. Thus, if assets in a trust created by a third party are to be

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included in the elective share estate, there is no way of accounting equitably for the fact that the surviving spouse made no contribution toward the acquisition of that asset, and no way of accounting for the fact that the beneficiaries identified by the original settlor may have far greater need for the trust assets than does the surviving spouse. The expansive definition of marital property used in divorce cases causes no injustice, and indeed promotes justice, because of the fine-tuned and case-specific approach to the equitable distribution of that marital property. There is no such fine-tuned or case-specific approach in the elective share statute, which simply makes a mathematical calculation of a percentage of the decedent's "estate," without regard to the needs, contributions, or other equities of the case. [Note 10] G. L. c. 191, § 15. The elective share "estate" for purposes of G. L. c. 191, § 15, should not automatically be equated with the decedent's marital property under G. L. c. 208, § 34, when the elective share "estate" is not distributed in a manner that bears any resemblance to the division of marital property in the event of divorce.

It is also apparent that, on divorce, the fact that one spouse has considerable power over or access to trust assets is an important consideration in any equitable division of the marital estate, regardless of the source of those trust assets. While the spouse with such power over the trust may not have exercised that power yet, the spouse will continue to have that power after the divorce. That one divorcing party has access to such trust assets, if that party chooses, is inherently part of the court's consideration of that party's "opportunity . . . for future acquisition of capital assets and income." G. L. c. 208, § 34. Where the division of property is supposed to be based in part on the parties' respective needs and ability to acquire resources,

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it would result in major inequity if the judge ignored one spouse's ability to resort to trust assets -- if the trust assets were not considered in that division, the spouse could exercise those powers over the trust the day after the divorce became final, upsetting the delicate balance struck by the judge in the division of property and award of alimony.

The same is not true when a spouse dies without having exercised powers given to that spouse under a trust established by a third party. There is no prospect of the deceased spouse exercising any of those powers after death. The opportunity to exercise those powers has irrevocably terminated, and the powers that the deceased spouse held in life no longer have any ability to result in some inequitable division of assets between the two spouses. The fact that the spouse could have exercised such powers during his or her lifetime does not change the fact that, on death, the opportunity to acquire property from the trust has passed. The power over a trust formerly held by a now-deceased spouse is not the equivalent of a power over trust assets held by a divorcing spouse who is still very much alive and remains empowered to use and dispose of the trust assets.

Moreover, while the amicus proposes that modern notions of marital property should be used to identify property of the decedent spouse that will be subject to the elective share, the elective share statute takes no heed of the surviving spouse's property that would also be marital property. If the idea is to provide the surviving spouse roughly what he or she would have obtained in the event of a divorce, that goal is defeated by not only the elective share statute's fixed percentage formula but also by the fact that divorce divides the entirety of the couple's marital property, while the elective share divides only the property previously owned by the decedent spouse. Thus, for example, if the bulk of the marital property is owned by one spouse, divorce would ordinarily have required that spouse to transfer some of that marital property to the other spouse. Under the elective share statute, however, the surviving spouse may claim a portion of the decedent's property for himself or herself, without regard to how much of the couple's marital property is

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already held by the surviving spouse. [Note 11] The elective share statute cannot operate in a manner comparable to property division on divorce unless the elective share "estate" includes all of the property -- including that of the surviving spouse -- that the court would divide in the event of divorce.

We thus do not accept the premise that underlies the rule proposed by the amicus. While it may be preferable to have an elective share statute based on contemporary notions of marriage and property, that does not mean that elective share principles should necessarily be identical to the principles that define marital property for purposes of division on divorce. Simply importing marital property jurisprudence from G. L. c. 208, § 34, into the definition of "estate of the deceased" under G. L. c. 191, § 15, does not modernize the elective share statute or cure its many defects. There is nothing "modern" about simply making the elective share "estate" larger at the expense of a third-party settlor's intended beneficiaries. Nor can we assume that such an approach will make the statute more equitable, as we have no basis on which to assess the frequency with which trust assets from a third party will be needed more by the surviving spouse than by the originally intended beneficiaries. We cannot, in the name of modernity, simply assume that the surviving spouse's prior marital status entitles him or her to a portion of that trust, notwithstanding the surviving spouse's needs and assets, the third-party settlor's original intent, or the needs of the settlor's chosen beneficiaries.

(v) Restatement (Third) of Property. Justice Greaney's dissent proposes yet another approach to the calculation of the elective share estate, namely, that we adopt prospectively the definition recently approved by the American Law Institute in the Restatement (Third) of Property: Wills and Other Donative Transfers § 9.1(c) (2003), which includes in the elective share estate "the value of property owned or owned in substance by the decedent immediately before death that passed outside of probate at the decedent's death to donees other than the surviving

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spouse." See post at 39 (Greaney, J., concurring in part and dissenting in part). Comment j to § 9.1(c) explains that property may be "owned in substance by the decedent through various powers or rights, such as the power to revoke, withdraw, invade, or sever, or to appoint the decedent or the decedent's estate as beneficiary. . . . It is irrelevant whether the decedent acquired substantive ownership of the property before or after the marriage by gift or otherwise from someone else." Restatement (Third) of Property, supra at 212. Comment j to § 9.1(c) thus dispenses with the express limitation in the former Restatement, now making the spouse's power over trust assets determinative, without regard to whether the spouse created or funded the trust. For the following reasons, we think it is inappropriate to adopt § 9.1(c) of the Restatement (Third) of Property at this time.

None of the materials presently before us -- the parties' briefs, the amicus brief, the decision of the judge below, or the decision of the Appeals Court -- contains any reference to § 9.1(c) or any other section of the Restatement (Third) of Property. As a fundamental principle, appellate courts should not reach out to decide issues that have not been briefed by any party (or even any amicus). However well intentioned, appellate courts create much mischief when they ignore that principle. See Commonwealth v. Sheehan, 435 Mass. 183, 194 n.1 (2001) (Sosman, J., concurring) (noting that controversial procedures for discovery of privileged records were created by court without any briefing in Commonwealth v. Bishop, 416 Mass. 169 [1993]). Before adopting § 9.1(c), sua sponte, we should await an appropriate case where the parties have presented us with the relative merits of the current as opposed to the former Restatement position on this complex issue. [Note 12] Nor do we accept the suggestion that deference to a current Restatement is so

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automatic or obvious that it needs no briefing. [Note 13] To the contrary, while this court often considers the various Restatements of the Law as prestigious sources of potentially persuasive authority, we have never taken the position that this court should abdicate to the views of the American Law Institute as set forth in its various Restatements. [Note 14]

On the specific issue before us, the position of the Restatement (Third) is diametrically opposed to the position articulated in the Restatement (Second). In the earlier Restatement, only those trusts created and controlled by the decedent spouse were eligible for inclusion in the elective share estate, whereas the current Restatement dispenses with that express restriction and includes in the elective share all property "owned in substance," including property acquired "by gift or otherwise from someone else." Compare Restatement (Second) of Property: Donative Transfers § 13.7 and comment a (1986) with Restatement (Third) of Property: Wills and Other Donative Transfers § 9.1(c) and comment j (2003). The merits of the new Restatement position are not so intuitively obvious that we can dispense with all briefing and simply adopt it. Indeed, without finally deciding the issue, we have the following serious reservations about adopting § 9.1(c) of the current Restatement at this time.

First, as indicated earlier, this is a statutory term we are interpreting, not a common-law concept. Nothing in G. L. c. 191, § 15, suggests that the Legislature intended that the definition of "estate of the deceased" would change based on

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the American Law Institute's promulgation of successive Restatements of the Law of Property. Whatever its merits, the mere fact that a new Restatement has been issued does not, and should not, cause us to reinterpret a statutory term that long predates the promulgation of either Restatement. To the extent that the Legislature wishes to amend the elective share statute to insert more modern concepts from the current Restatement, that is the Legislature's prerogative. We, however, should not insert such concepts into the statutory scheme absent some basis for believing that those concepts comport with the Legislature's intent. [Note 15] We see no basis for such a belief at this time, although appropriate briefing -- or legislative action -- might convince us otherwise in the future.

We are also troubled by the uncertain scope of the new Restatement position. Section 9.1(c) provides no definition of the rather murky phrase "owned in substance," but comment j to that section explains that property is "owned in substance" if the decedent had "various powers or rights, such as the power to revoke, withdraw, invade, or sever, or to appoint the decedent or the decedent's estate as beneficiary," and that "the decedent's motive in creating, exercising, or not exercising any of these powers is irrelevant." Comment j thus indicates that the existence of "various powers or rights" held by the decedent spouse will render the trust property "owned in substance" by the decedent and thus subject to the elective share, but fails to

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specify precisely what "powers" or "rights" suffice or, conversely, what "powers" or "rights" will not be great enough to make the decedent the owner "in substance" of the property. [Note 16] Some settlors have sound reasons for giving a trustee considerable powers over a trust, [Note 17] but they would have to be warned that the mere existence of such powers may give the trustee's

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spouse rights to a portion of the trust property in the event that the trustee predeceases his or her spouse. The ambiguities inherent in the concept of "owned in substance" would be the source of much drafting uncertainty and, ultimately, litigation to determine what trust provisions will or will not provide a safe harbor for such trusts.

Finally, we note that the reasons for this change in the current Restatement are not entirely clear. The justification articulated in the new Restatement for an expansive approach to the inclusion of trust property in the elective share "estate" is the desire to avoid disinheritance of a spouse by a decedent spouse's "evasion" -- i.e., the same concern articulated in the earlier Restatement (and in Sullivan), and already covered in that prior version. Comment i to the new § 9.1(c), supra at 211, explains that the expanded calculation of the elective share "estate" is necessary to avoid the inequities that would result by looking solely at the decedent's "probate estate," as "such a regime invites evasion by means of will substitute or end-of-life gifts. If the surviving spouse is to be protected from disinheritance will, the surviving spouse must also be protected from disinheritance by those means." The Reporter's Note to comment j, supra at 214, echoes that same concern: "An elective share is of little value to a surviving spouse if it applies only to the decedent's probate estate, because the decedent could use will substitutes to disinherit the spouse" (emphasis added). The Reporter's Note, id. at 214- 215, then traces the development of such concepts as "illusory transfer," devised in various jurisdictions to prevent a spouse's evasion by way of creation of a trust, up through the "breakthrough" of our Sullivan case, followed by several cases from other jurisdictions that adopted the Sullivan approach. See Taliaferro v. Taliaferro, 252 Kan. 192 (1992); Knell v. Price, 318 Md. 501 (1990); Seifert v. Southern Nat'l Bank, 305 S.C. 353 (1991). As with Sullivan itself, all of the cases cited in the Reporter's Note involved the spouse creating the trust and transferring into that trust assets that had previously

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been owned outright by the spouse. [Note 18] Conspicuously absent from the Reporter's Note is any precedent for including in the elective share estate assets in a trust that was created and funded by someone other than the decedent spouse. [Note 19] The objective of preventing "evasion" of the elective share statute is an objective that was fully served by the Restatement (Second), and this discussion in comment j and the Reporter's Note in the Restatement (Third) concerning "the decedent" using will substitutes to "disinherit" the surviving spouse does not explain or justify why the Restatement (Third) changed position and chose to include trusts established by third parties in the elective share estate. When a third party makes no provision for someone else's spouse, that failure is not a "disinheritance" of that spouse or an "evasion" of the elective share statute. [Note 20] Nor, contrary to Chief Justice Marshall's dissent, has the settlor

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exploited any "loophole" that the new Restatement might justifiably "attempt to foreclose." Post at 38 (Marshall, C.J., concurring in part and dissenting in part).

We thus think that it is inadvisable to announce any prospective rule on this complex subject at this time. We do, however, agree with the observation that our elective share statute may fail to provide sufficient support for disinherited spouses and that it has failed to keep pace with the changing principles on which the property rights of married couples are now based. Indeed, there appears to be no dispute that our elective share statute is outdated and inadequate. The dispute centers solely on which of the various models for a modern elective share statute would best achieve the desired goals. See Note, Marital Property Reform in Massachusetts: A Choice for the New Millennium, 34 New Eng. L. Rev. 261, 309-339 (1999). Now that two members of this court have announced their inclination to revamp the statute, the need for the Legislature to overhaul this statute may appear more pressing than it has to date. If their proposed judicial legislation prompts legislative action in this neglected but important aspect of marital rights and obligations, Justice Greaney's dissent, although ill-advised, will have accomplished much good. At present, we adhere to the Sullivan rule as originally articulated and decline to add "property owned in substance" to the elective share "estate" under G. L. c. 191, § 15.

b. The bank account. As a practical matter, the plaintiff's claim to an elective share of the assets of the bank savings account may well be moot, for the record appears to support the defendants' assertion that the debts and expenses of Jean's estate exceed the total assets in her probate estate and in the bank account. We nonetheless consider the claim and agree with the Appeals Court that the bank savings account was a valid inter vivos trust to which the Sullivan rule unquestionably applies. The bank savings account, while a valid trust, could be

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revoked by Jean, its settlor, at any time, by merely withdrawing its funds, and Jean retained unlimited power to use assets in the bank account trust during her lifetime. Because it appears undisputed that the bank savings account in its trust form was established by Jean after the Sullivan decision, we conclude that the assets in that account must be considered part of Jean's estate for purposes of calculating the plaintiff's elective share under G. L. c. 191, § 15.

3. Conclusion. We vacate the judgment dismissing the complaint. A declaration is to enter that the real estate at issue is not to be considered part of the estate of Jean Bongaards, but that the assets in the bank savings account are to be considered part of her estate, for purposes of calculating the plaintiff's elective share.

So ordered.

MARSHALL, C.J. (concurring in part and dissenting in part). In Sullivan v. Burkin, 390 Mass. 864 (1984) (Sullivan), this court, after considering, among several authorities, a then draft provision of the Restatement (Second) of Property: Donative Transfers (1984) (Restatement [Second]) of the American Law Institute (ALI), concluded that "the estate of a decedent, for the purposes of G. L. c. 191, § 15, shall include the value of assets held in an inter vivos trust created by the deceased spouse as to which the deceased spouse alone retained the power during his or her life to direct the disposition of those trust assets for his or her benefit, as, for example, by the exercise of a power of appointment or by revocation of the trust." Sullivan, supra at 867. Id. at 869-870 & n.4, 873. The court reached this conclusion after the Appeals Court had reported the precise question to this court in light of the "recent discussions within the American Law Institute." [Note Marshall-1] Id. at 865 n.2. In response to the Appeals Court report, the parties filed comprehensive briefs with

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this court concerning the discussions within the proposed draft (later adopted) of § 13.7 of the Restatement (Second) of Property: Donative Transfers (Tent. Draft No. 5 Supp. 1982) on the subject, and the ramifications of overturning judicial precedent and announcing a new property rule. See Sullivan, supra at 871 ("In the area of property law, the retroactive invalidation of an established principle is to be undertaken with great caution").

Today, the court undertakes a sweeping criticism of § 9.1(c) of the Restatement (Third) of Property: Wills and Other Donative Transfers (2003) (Restatement [Third]), the successor to § 13.7 of the Restatement (Second), the section concerning inter vivos trusts at issue in Sullivan. The court does so even as it recognizes that the issue was not raised in the trial court, in the Appeals Court, or in this court, was not briefed by any of the parties, ante at 28-29, and neither the parties nor the sole amicus [Note Marshall-2] makes so much as a passing reference to § 9.1(c), to any other provision of the Restatement (Third), or to any other statement of the ALI, for that matter.

The court's inexplicable reaching out to criticize, entirely in dicta, the ALI's most recent formulation concerning the interplay between inter vivos trusts and the statutory elective share, G. L. c. 191, § 15, is particularly unwarranted because the plaintiff himself has not so much as suggested any expansion of the Sullivan rule, but argued only that the peculiar facts surrounding the creation, and the terms of, the trust at issue in this case brought the trust within Sullivan's controlling precedent. [Note Marshall-3], [Note Marshall-4] The court correctly concludes they do not.

This is a simple case, controlled by Sullivan. As the court

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correctly notes, Sullivan applies only to inter vivos trusts created by a deceased spouse. Ante at 17-18. The trust at issue here was not created by the deceased spouse, and under Sullivan, is not part of the decedent's estate for purposes of G. L. c. 191, § 15. See Sullivan, supra at 872. As the plaintiff makes no other claim, that should end the court's inquiry. The only argument for a "more expansive rationale," ante at 19, for reaching the result urged by the plaintiff has been advanced by an amicus. And that amicus makes no reference whatsoever to § 9.1(c) of the Restatement (Third), or to any other treatise of the ALI. [Note Marshall-5]

I concur with the conclusion of the court that the arguments actually advanced by the plaintiff have no merit, and for that reason the real estate at issue should not be considered part of the estate of the deceased spouse for purposes of calculating the plaintiff's statutory elective share, G. L. c. 191, § 15. I dissent from so much of the court's opinion as indulges in the criticism of, or forecloses in any respect our subsequent consideration of, the recently approved § 9.1(c) of the Restatement (Third). Ante at 28-34. In my view this court could and should review in an appropriate case, if properly raised, whether interpretation of our elective share statute G. L. c. 191, § 15, should be

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informed by (not dictated by) the ALI's view, as this court did in Sullivan.

Indeed, adherence to the statutory construction now urged by the court would have foreclosed our ruling in Sullivan. It is neither accurate nor sufficient to say that Sullivan closed a statutory "loophole," ante at 22, or that the property at issue in that case is subject to the spousal elective share because it "would ordinarily have been" part of the probate "estate." Id. The probate estate is, of course, not determinable until the person dies. And Sullivan was explicit that it relied for its ruling, not on any proposed new Restatement of the ALI, but on the observation that "significant changes since 1945 in public policy considerations bearing on the right of one spouse to treat his or her property as he or she wishes during marriage" warranted overruling Kerwin v. Donaghy, 317 Mass. 559 (1945). Sullivan, supra at 871-872. Indeed, in Sullivan, the court did not adopt the ALI's position as such, and notes that, even within the ALI, the issue was contentious. Id. at 869.

Contrary to the court's intimation, consideration in an appropriate case whether § 9.1(c) of the Restatement (Third) should provide guidance to this court's review of a G. L. c. 191, § 15, claim concerning an inter vivos trust created by a third party would not necessarily "contravene" every settlor's plans. Ante at 22-23. It is one thing for a settlor to provide that independent trustees are to direct the disposition of some trust assets to a spouse beneficiary during her lifetime, with all unexpended trust assets passing to residual beneficiaries. It is quite another for a settlor to relinquish all control of the trust to a sole trustee (a spouse) who alone has the power to direct the disposition of all trust assets to herself as beneficiary on the settlor's death, as the settlor did in this case. If Sullivan closed a "loophole," in G. L. c. 191, § 15, concerning what "property" of the deceased spouse is to be considered for purposes of the deceased spouse's "estate," Sullivan, supra at 871, so too might other "loopholes" be closed by this court. The principles articulated by § 9.1(c) of the Restatement (Third) can reasonably be seen as an attempt to foreclose another "loophole," rather than any attempt to "satisfy modern notions of a decedent spouse's obligation to support the surviving spouse or modern notions of marital property." Ante at 21.

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The purpose of the elective share, G. L. c. 191, § 15, is, as noted by Justice Greaney, to "provide[] a minimum measure of economic security to surviving spouses, usually women, who would otherwise be disinherited." Post at 40 (Greaney, J., concurring in part and dissenting in part). I reject any suggestion that this court cannot interpret the statute to effectuate this purpose. Surely the "question of the rights of a surviving spouse in the estate of a deceased spouse, using the word 'estate' in its broad sense, is one that can best be handled by legislation." Sullivan, supra at 873. But until the Legislature acts, "the answers to these problems will 'be determined in the usual way through the decisional process.' " Id. at 874, quoting Tucker v. Badoian, 376 Mass. 907, 918-919 (1978) (Kaplan, J., concurring).

GREANEY, J. (concurring in part and dissenting in part, with whom Spina, J., joins). I agree with the court's conclusion that the plaintiff cannot recover in this case on the theories argued. I favor adopting, however, the principles expressed in § 9.1(c) of the Restatement (Third) of Property: Wills and Other Donative Transfers (2003), to govern assets held by a decedent in a trust with terms like this trust, which permit the decedent to control the trust assets entirely for his or her sole benefit, whether those assets were placed in the trust by the deceased spouse or by a third person. [Note Greaney-1] I would do so because this court's decision in Sullivan v. Burkin, 390 Mass. 864, 867 (1984), contemplates an extension of this sort as long as Restatement text approves it (which the text now does) and because the approach taken by the American Law Institute (ALI) treats functional equivalents of ownership similarly and does not allow choice of form to deny a surviving spouse a share of property in which he or she would have a substantive right had the marriage ended in divorce rather than death. If the protection contemplated by the statutory elective share is to have any practical significance in an age where conventional estate planning offers scores of will substitutes, a deceased's "estate" cannot be limited solely to the

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probate estate. [Note Greaney-2] The possible disruption of one's estate plan does not diminish the importance of a statutory approach that provides a minimum measure of economic security to surviving spouses, usually women, who would otherwise be disinherited. Indeed, at its most elemental level, the elective share was designed to frustrate the intent of a settlor or testator whose estate plan otherwise would operate totally (or substantially) to disinherit his or her spouse.

It is not quite right to say, as the court does, that this issue has not been briefed. Although the plaintiff has not specifically cited the Restatement, his arguments are entirely congruent with that authority. More directly, the plaintiff relies (as does the amicus, the Women's Bar Association of Massachusetts), as might be expected, on the decision of Sullivan v. Burkin, supra, which has Restatement (Second) principles and thinking at its core. The Restatement (Second) is also referenced specifically in the decision of the Appeals Court. See Bongaards v. Millen, 55 Mass. App. Ct. 51, 58 & n.16 (2002). [Note Greaney-3]

As noted by the court, the Restatement (Third) now expressly includes, as part of the deceased spouse's estate for purposes of

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a surviving spouse's elective share, "the value of property owned or owned in substance by the decedent immediately before death that passed outside of probate at the decedent's death to donees other than the surviving spouse." Restatement (Third) of Property: Wills and Other Donative Transfers § 9.1(c) (2003). The court's criticism of the ALI and its Restatement (Third) of Property: Wills and Other Donative Transfers is quite remarkable. The court suggests in various ways that the approach adopted by the ALI is vague, unsupported, contradictory, and poorly reasoned. I disagree.

The text of the Restatement makes reasonably plain that the ALI is adopting, and building on, the acknowledged and well-reasoned change made by this court in Sullivan v. Burkin, supra, to extend spousal elective share rights to property owned outright or virtually outright by the deceased spouse. The definition of "owned in substance" in the Restatement is not, as characterized by the court, "murky." Ante at 30. Comment j to § 9.1(c) explains that property may be "owned in substance by the decedent through various powers or rights, such as the power to revoke, withdraw, invade, or sever, or to appoint the decedent or the decedent's estate as beneficiary. . . . It is irrelevant whether the decedent acquired substantive ownership of the property before or after the marriage by gift or otherwise from someone else. The objective is to equate property owned in substance with probate property, which includes property that the decedent acquired before or after the marriage by gift or otherwise from someone else." The term is further illustrated in a definitional section of Restatement text as "property that the decedent did not own but over which the decedent had sufficient control, such as through a power to become the owner, to be treated as the owner for some purposes, such as the federal estate tax or the spouse's elective share. Thus, property subject to a revocable trust is part of the decedent's gross estate for purposes of the federal estate tax and is subject to the spouse's elective share, but is not part of the decedent's probate estate. The same applies to property in a trust over which the decedent had a general power of appointment . . . ." Restatement (Third) of Property: Wills and Other Donative Transfers § 1.1 comment b (1999). This definition clearly identifies that it pertains to

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transfers made (as here) by a third party; that it "refers to property . . . over which the decedent had sufficient control, such as through a power to become the owner" (which is the case here); and that it includes property held by the decedent which is subject to the "federal estate tax" (which is also the case here). [Note Greaney-4] Id. In other words, the Restatement (Third) makes clear what common sense suggests: if the deceased spouse has complete control over assets in a trust, the deceased spouse should be treated as the trust's owner for purposes of the surviving spouse's elective share rights. [Note Greaney-5]

The statements made by the member referred to in the court's opinion, ante at 33 n.20, at the meeting at which the Restatement's principles were adopted, are entirely consistent with what has been said above. The fact of the matter, however, is that the final product bears the approval of the entire membership of the ALI reached only after long deliberative processes and with involvement and commentary by judges, lawyers, academics, and experts in the area of property rights, wills, and other instruments that affect donative transfers and spousal elective share rights. [Note Greaney-6]

The court suggests that my dissent rests on principles of equitable property division under G. L. c. 208, § 34. This is not so. [Note Greaney-7] I simply recognize, as the Sullivan court did, that the area of marital property division bears some intrinsic relevance to

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the operation of G. L. c. 191, § 15. See Sullivan v. Burkin, supra at 871-872. The Appeals Court made a similar analogy in this case when it said: "There is considerable force to the view that a person who remains married until the death of his or her spouse should have similar access to the assets of a trust controlled by that spouse as would be extended to that person had he or she become divorced from that spouse." Bongaards v. Millen, supra at 58-59. Doubtless there may be instances in which the statute's mechanical formula for determining the elective share amount, regardless of what property is included in the "estate of the deceased," might overcompensate a surviving spouse of independent means or one who has been otherwise provided for by life insurance, pension death benefits, or other will substitutes. It could also provide a windfall to one who, due to the short duration of the marriage, should not be entitled to a full statutory share of the deceased spouse's estate. Such occurrences, undoubtedly infrequent, are part and parcel of any elective share statute. In the vast majority of cases, however, the statute, interpreted to include assets in trusts with terms such as the trust before us, would not operate to create unjust results but rather would provide a measure of equity and justice to an effectively disinherited spouse, typically a wife. There thus is imbedded in the entire scheme a gender issue of societal importance that can be appropriately addressed and solved straightforwardly by a common-law court, without hand-wringing over statutory construction. [Note Greaney-8]

My position is supported by the observations that (1) in

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almost every situation, the elective share does not come into play because the deceased spouse did not directly or indirectly seek to disinherit the surviving spouse; and (2) settlors such as D'Amore could, by appropriate wording, achieve the ends apparently sought here by not giving the sole trustee and primary beneficiary a power akin to a general power.

I recognize that a sweeping judicial change in this area could have unintended far reaching consequences and adhere to the view expressed by the Sullivan court, that "[t]he question of the rights of a surviving spouse in the estate of a deceased spouse, using the word 'estate' in its broad sense, is one that can best be handled by legislation." Sullivan v. Burkin, supra at 873. As noted by the court, the Legislature "has recently considered numerous proposals" and at least five bills currently are pending before the Legislature to "modernize" the current elective share statute, acknowledged by the court to be "woefully inadequate." Ante at 21. Based on the lack of legislative action to date, it cannot be expected that the Legislature will promptly act in the wake of the court's decision today. Moreover, because the court leaves little margin for hope that any judicial relief in the area of spousal elective share rights will be forthcoming (and because any ruling on the subject would be prospective only), there will not likely be another case to achieve an equitable result based on the reasoning of Sullivan v. Burkin, supra.