Sullivan v. Burkin

390 Mass. 864, 460 N.E.2d 572 (1984)

 

RULE:

The right of a wife to waive her husband's will, and take, with certain limitations, the same portion of the property of the deceased, real and personal, that she would have taken if the deceased had died intestate, Mass. Gen. Laws ch. 191, § 15, does not extend to personal property that has been conveyed by the husband in his lifetime and does not form part of his estate at his death.

FACTS:

Plaintiff widow exercised her right, under Mass. Gen. Laws ch. 191, § 15, to take a share of her husband's estate. She sought a determination that assets held in an inter vivos trust created by her husband during the marriage should be considered as part of the estate in determining that share. The widow's claim was that the inter vivos trust was an invalid testamentary disposition. The probate court dismissed the complaint. The widow appealed. A panel of the Appeals Court reported the case to the court.

ISSUE:

Did a surviving wife making an election under G. L. c. 191, § 15 have a right to share in the assets of a revocable inter vivos trust established by the husband over which he had a general power of appointment?

ANSWER:

No.

CONCLUSION:

The court affirmed and held that the trust was not testamentary in character and that the husband effectively created a valid inter vivos trust. The assets of the inter vivos trust were not to be considered in determining the portion of the estate of the deceased in which the widow had rights. The surviving spouse was denied any claim against the assets of a valid inter vivos trust created by the deceased spouse, even where the deceased spouse alone retained substantial rights and powers under the trust instrument.

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