## Facts

- Ernest G. Sullivan created an inter vivos trust in 1973 by deed, transferring certain real estate to himself as sole trustee.
- The trust paid all net income to Ernest during life and required the trustee to distribute principal to Ernest upon his written request.
- Ernest retained an unrestricted power to revoke the trust.
- On Ernest’s death, the successor trustee was to distribute the remaining trust principal and undistributed income equally to George F. Cronin, Sr. and Harold J. Cronin, who survived him.
- The trust instrument lacked attesting witnesses, but Ernest executed it before a notary and acknowledged his signature.
- Ernest died in 1981 while still trustee; his will stated he intentionally made no provision for his wife, Mary A. Sullivan, and left the probate residue to the trust.
- Mary, Ernest’s surviving spouse, filed for her statutory share under Mass. Gen. Laws ch. 191, § 15 and sought to include trust assets in the estate for calculating that share.
- The Probate Court dismissed Mary’s complaint; the Appeals Court reported the case to the Supreme Judicial Court of Massachusetts without decision.

## Issues

1. Whether a revocable, self-settled inter vivos trust under which the settlor retained income, access to principal, and a power to revoke was testamentary and invalid for noncompliance with will formalities.
2. Whether, under Mass. Gen. Laws ch. 191, § 15, a surviving spouse could treat assets in such a trust as part of the decedent’s estate for the statutory share.
3. Whether Massachusetts should modify, and if so how to apply, the rule allowing a decedent to defeat the statutory share by placing assets in a revocable inter vivos trust.

## Decision

- The Supreme Judicial Court affirmed dismissal of the widow’s claim.
- The court held the trust was a valid inter vivos trust and not an invalid testamentary disposition despite the settlor’s retained powers and beneficial enjoyment.
- Under Massachusetts law as it existed when the trust was created and at the decedent’s death, the widow had no statutory-share right in assets held in a valid inter vivos trust, even if the trust had the effect of defeating the spouse’s election.
- The court announced a prospective rule: for inter vivos trusts created or amended after the decision, trust assets are included for § 15 purposes when the settlor alone retained a power to appoint the property to himself or his estate (a general power of appointment).

## Legal Principles

- A trust is not rendered testamentary, and thus not subject to will-execution formalities, solely because the settlor retains: (a) a life interest in income, (b) power to revoke or amend, (c) power to invade principal, and (d) the role of trustee.
- Under pre-decision Massachusetts doctrine, assets transferred to a valid inter vivos trust were generally outside the “estate” used to compute a surviving spouse’s statutory share under Mass. Gen. Laws ch. 191, § 15.
- A court may change estate-and-trust doctrine prospectively to protect reliance interests in prior estate planning; such a rule can apply only to trusts created or amended after the date of decision.
- Prospectively, for § 15 calculations, certain revocable trust assets are treated as part of the decedent’s estate when the settlor retained a general power of appointment over the trust property.

## Conclusion

The court upheld the validity of a revocable, self-settled inter vivos trust and, under existing law, denied the surviving spouse access to trust assets for the statutory share; however, it revised Massachusetts law going forward by requiring inclusion of certain post-decision revocable trust assets in the elective-share computation when the settlor retained a general power of appointment.


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