## Facts

- Josephine D’Amore created an inter vivos trust in 1978 holding a Boston apartment building; she was sole trustee and lifetime beneficiary.
- The trust provided that, upon D’Amore’s death, her daughter Jean would become sole trustee and lifetime beneficiary if she accepted.
- The remainder was to pass to specified family beneficiaries, with Jean holding a power of appointment among those classes.
- D’Amore later executed a deed purporting to convey the trust real estate to Jean individually.
- After D’Amore died, Jean became trustee and life beneficiary; the property was worth about $1.4 million when Jean later died.
- Jean did not terminate the trust under its stated termination procedures, but shortly before death exercised her power of appointment to direct the remainder to her sister and others, excluding her husband, George Bongaards.
- Jean’s will expressly disinherited George.
- George claimed a statutory elective share under Mass. Gen. Laws ch. 191, § 15 and sought to include (1) the trust real estate and (2) Jean’s bank savings account in the elective-share computation.
- The Probate and Family Court dismissed George’s claims on cross-motions for summary judgment; the Appeals Court excluded the trust property but included the bank account; further appellate review was granted.

## Issues

1. Whether assets held in an inter vivos trust created by a third party, over which the decedent spouse held a life interest and substantial powers as trustee and donee of appointment, are part of the decedent’s “estate” for purposes of the surviving spouse’s elective share under Mass. Gen. Laws ch. 191, § 15.
2. Whether the trust was void for lack of beneficiaries or was terminated by the settlor’s later deed purporting to convey the trust real estate to the decedent individually.
3. Whether equitable estoppel permits disregarding an otherwise valid trust to include trust assets in the elective-share estate.
4. Whether the rule treating certain self-settled revocable trust assets as part of the elective-share estate applies to, or should be extended to cover, third-party trusts or property that would be divisible as marital property in divorce.
5. Whether the decedent’s bank savings account is part of the elective-share estate.

## Decision

- The court held the trust was valid and remained in effect; the settlor’s deed purporting to convey trust property individually was ineffective.
- The court held the trust real estate was not part of the decedent’s “estate” for elective-share purposes because the trust was created by a third party, not by the decedent.
- The court declined to apply equitable estoppel to disregard the trust and treat its assets as probate property.
- The court limited the elective-share inclusion rule for revocable trusts to trusts created (as settlor) by the decedent spouse and declined to extend it to third-party trusts or to an elective-share measure based on divorce-style marital property concepts.
- The court held the decedent’s bank savings account was includable in the elective-share computation.
- Judgment effectively affirmed exclusion of the trust property and inclusion of the bank account.

## Legal Principles

- Property held in an inter vivos trust created by a third party is not included in the decedent spouse’s elective-share “estate” merely because the decedent served as trustee, held a life interest, and possessed significant powers (including appointment or potential termination authority).
- A deed purporting to transfer trust-owned real estate by a grantor who does not own the property individually does not terminate the trust or convey valid title; express trust termination requirements control.
- Equitable estoppel is not used to destroy an otherwise valid trust arrangement in order to increase a surviving spouse’s elective share.
- The Massachusetts rule that can include certain revocable trust assets in the elective-share estate applies only where the decedent spouse was the trust’s settlor; it does not automatically extend to third-party trusts.
- Expanding the elective-share statute to track divorce-style marital property division is a legislative policy choice, not a judicial modification of the term “estate.”
- Assets owned outright by the decedent at death, such as a bank savings account in the decedent’s name, are included in the elective-share estate.

## Conclusion

Massachusetts held that a surviving spouse’s elective share does not reach real estate held in a valid inter vivos trust created by a third party for the decedent, even where the decedent had extensive control and a life interest, but does include the decedent’s own bank account held in her name at death.


Bongaards v. Millen, 793 N.E.2d 335 (Mass. 2003)