Sullivan v. Burkin
Supreme Judicial Court of Massachusetts
460 N.E.2d 572 (1984)
Ernest Sullivan died with a will disinheriting his wife, Mary Sullivan (plaintiff), and directing the residue of his estate to the trustee of a revocable trust he created during the marriage, over which Ernest alone had the right to revoke or invade principal; upon his death, the trust assets were to pass to George and Harold Cronin (defendants). Mary elected to take her statutory spousal share of Ernest's probate estate and sued to include the trust assets in that estate, arguing the trust was an ineffective testamentary disposition because it lacked the witnesses a will requires; the probate court dismissed her claim, and the case reached the Supreme Judicial Court.
Whether, when an inter vivos trust is created by a decedent spouse during the marriage and only the decedent spouse held the general power of appointment under the trust, the trust assets are part of the probate estate for purposes of determining the omitted spouse's statutory share.