Forced Share in Massachusetts

In Who do You Trust?, Quinnipiac Prob. L.J. 290 (2005), law student Todd D. Kremin discusses the case of Bongaards v. Millen, 793 N.E.2d 335 (Mass. 2003), which held

that an inter vivos trust, to which a deceased spouse held the general power of appointment, was not part of the estate of the deceased for purposes of determining the surviving spouse’s elective share.* * * [The court] declined to expand the meaning of this phrase to accommodate changing times and incorporate the array of will substitutes available. The court refused to make new law and elected to defer to the legislature to update the statute to reflect the modern notions surrounding the elective share estate.

  Mr. Kremin explains that his note

explores and attempts to clarify the rights of a surviving spouse with regards to an elective share. More specifically, this Comment discusses the breadth of the current “estate of the deceased”, and the modifications that must be made to the statute to establish a law that is congruent with legislative intent and equitable for all interested parties. If the goal of an elective share statute is to provide adequate protection for a spouse from disinheritance, it must be so interpreted.