## Facts

- H. Ripley Thompson and Anne L. Thompson married in 2001 and remained married until Ripley’s death in 2010.
- In 2009, during a period of declining health and while residing in a nursing home, Ripley executed a new will and restated his revocable inter vivos trust.
- The 2009 will left Anne a $100,000 bequest.
- Ripley placed most of his wealth into the revocable trust; at death, trust assets exceeded $5.8 million, while probate assets were approximately $230,471.
- After Ripley’s death, Anne filed suit seeking to set aside the 2009 will and trust for incapacity and undue influence, or alternatively to take her statutory elective share and to include trust assets when calculating that share.
- The circuit court upheld Anne’s election to take against the will and found Ripley intended to deprive Anne of her elective share; it ordered the trust assets included in the estate for elective-share calculation purposes.
- The estate’s personal representative/trustee appealed.

## Issues

1. Whether the circuit court clearly erred in finding Ripley intended to deprive Anne of her statutory elective-spousal share through the 2009 estate plan.
2. Whether assets held in Ripley’s inter vivos revocable trust could be included in the estate for the limited purpose of calculating Anne’s elective share based on that intent.

## Decision

- The Arkansas Supreme Court affirmed.
- The court held that when a settlor creates an inter vivos revocable trust with intent to deprive the surviving spouse of marital rights, trust assets may be included in the probate estate for the limited purpose of calculating the elective share.
- The court found no clear error in the circuit court’s finding that Ripley structured and funded the 2009 trust and will to defeat Anne’s statutory rights.
- The court emphasized the remedy was limited to elective-share computation rather than invalidation of the trust.

## Legal Principles

- A surviving spouse’s elective share cannot be defeated by a revocable-trust arrangement created or structured with intent to deprive the spouse of statutory marital rights.
- If such intent is shown, assets in an inter vivos revocable trust may be treated as part of the decedent’s estate solely for computing the elective share.
- Intent to defeat marital rights may be inferred from the totality of circumstances, including: transferring most wealth to a revocable trust while retaining control, leaving a small probate estate, and sharply reducing the spouse’s share compared with earlier plans.
- Appellate review of a trial court’s intent finding is deferential; the finding is upheld absent clear error.

## Conclusion

The court affirmed inclusion of revocable-trust assets in the elective-share calculation because the decedent’s 2009 trust-and-will structure supported a finding that it was designed to defeat the surviving spouse’s statutory elective share, and Arkansas law provides a limited corrective remedy for that purpose.


In re Estate of Thompson, 434 S.W.3d 877 (Ark. 2014)