The Elective Share has no Friends: Creditors Trump Spouse in the Battle Over the Revocable Trust

AuthorAngela M. Vallario
PositionAngela M. Vallario is an Associate Professor at the University of Baltimore School of Law; B.S. (University of Florida); J.D. (University of Baltimore School of Law); LL.M (Georgetown Law Center). I am grateful to Austin Cohen, Alison Graham, Brittney Grizzanti, and Kiernan Waters.
A revocable trust is a popular estate planning tool used to disinherit a
spouse in sixteen jurisdictions.1 In common law jurisdictions, a surviving
spouse, who is dissatisfied with his or her inheritance, has the right to receive
an elective share of the decedent’s estate regardless of the decedent’s estate
plan.2 However, sixteen jurisdictions have defined a dissatisfied spouse’s
rights with a fractional share of the d eceased spouse’s “net p robate estate,”
allowing one spouse to disinherit the other, by single-handedly transferring
his or her assets to a revocable trust.3 To add insult to injury seven of these
common law jurisdictions have recently codified trust law making it
seamless for the decedent’s creditor to be paid from revocable trust assets.4
The elective share is one of few limitations imposed on testamentary
freedom.5 Common law property jurisdictions have created a public policy-
based statute for married persons that prohibit the first-to-die spouse from
disinheriting his or her surviving spouse.6 To avoid disinheritance, common
law jurisdictions statutorily protect a surviving spouse (spouse) with an
elective share.7 The elective share arose in the early nineteenth century as a
Copyright © 2016, Angela Vallario.
* Angela M. Vallario is an Associate Professor at the University of Baltimore School of
Law; B.S. (University of Florida); J.D. (University of Baltimore School of Law); LL.M
(Georgetown Law Center). I am grateful to Austin Cohen, Alison Graham, Brittney
Grizzanti, and Kiernan Waters.
1 See Terry L. Turnipseed, Community Property v. The Elective Share, 72 LA. L. REV.
161, 179 (2011).
2 Id. at 161.
3 Id. at 162.
4 See infra note 19.
5 Robert H. Sitkoff, Trusts and Estates: Implementing Freedom of Disposition, 58 ST.
LOUIS U. L.J. 643, 644 (2014) (recognizing that there are some limitations on testamentary
freedom, which include those testamentary provisions that violate public policy as well as the
Rule Against Perpetuities).
6 See John H. Langbein & Lawrence W. Waggoner, Reforming the Law of Gratuitous
Transfers: The New Uniform Probate Code, 55 ALB. L. REV. 871, 874 (1992); Melvin J.
Sykes, Inter Vivos Transfers in Violation of the Rights of Surviving Spouses, 10 MD. L. REV.
1, 2 (1949).
7 Sykes, supra note 6, at 2.
replacement of dower and curtesy rights.8 At that time the nature of wealth
shifting from real to personal property made dower and curtesy obsolete.9
The elective share protected the spouse from disinheritance by
guaranteeing him or her with a fractional share of the deceased spouse’s net
probate estate, a method known as the traditional elective share.10 However,
like the shift from real to personal property there has been a subsequent shift
in wealth from probate to non-probate assets (like revocable trusts) making
the traditional elective share equally obsolete and inadequate to protect a
spouse from disinheritance.
A revocable trust is an arrangement created during the decedent/settlor’s
lifetime whereby the decede nt/settlor transfers trust assets to himself,
herself, or a third party as trustee but maintains control by its trust terms
giving the decedent/settlor the ability to revoke, alter, or amend.11 The
titling of the assets in the name of the trustee (even if it is the
decedent/settlor) is what converts the asset from probate to non-probate and
outside the reach of the traditional elective share statute.12
It has been recognized for many years that the traditional elective share
is inadequate to protect a spouse from disinheritance by a revocable trust.13
At first, courts created equitable common law modifications in response to
the ineffective traditional elective share to protect the spouse from being
disinherited with a revocable trust.14 The inequities of the traditional
elective share and common law modifications mandated reform.
Reform efforts in Pennsylvania and New York inspired the National
Conference Commissioners on Uniform State Laws to draft the Uniform
Probate Code (UPC) introducing the “augmented estate” concept.15 The
thrust of the UPC’s augmented estate was to include non-probate assets (like
revocable trusts) into the spouse’s elective share calculation.16 The UPC
promulgated an augmented estate model for other jurisdictions to follow.17
8 Id.
9 Id.
10 See Turnipseed, supra note 1, at 162.
11 Alan Newman, Revocable Trusts and the Law of Wills: An Imperfect Fit, 43 REAL
PROP. TR. & EST. L.J., 523, 524 (2008).
12 See Turnipseed, supra note 1, at 179.
13 See Newman v. Dore, 9 N.E.2d 966 (N.Y. 1937). In Newman, the testator transferred
his entire property into a revocable trust for the purpose of diminishing his estate and reducing
the surviving spouse’s elective share amount. Id. at 968. Finding this to be a contrivance
upon the rights of the surviving spouse, the court held that the trusts were subject to the
spouse’s elective share. Id. at 969.
14 See, e.g., id. at 966.
15 See Langbein & Waggoner, supra note 6, at 872.
16 See id. at 881.
17 See infra Section IV.A. The Uniform Probate Code introduced the “augmented estate”
elective share approach in 1969, which statutorily includes both probate and non-probate

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