Monday, November 11, 2013

Bongaards v. Millen case brief

Bongaards v. Millen case brief summary
793 N.E.2d 335 (2003)

Plaintiff surviving spouse appealed a judgment from the Appeals Court (Massachusetts). A probate court had dismissed his complaint, which sought a declaration that his deceased wife's trust property and bank savings account were part of the elective share estate under Mass. Gen. Laws ch. 191, § 5. The appeals court held that the Sullivan rule did not apply to the trust but that the account should have been included in the elective share estate.


Plaintiff's mother-in-law created a trust and conveyed to the trust certain real estate. The trust provided that upon the mother-in-law's death, plaintiff's wife would become the sole trustee and sole lifetime beneficiary. Plaintiff's wife stated in her will that she had intentionally not provided for plaintiff, who sought a declaration following his wife's death that the trust and a bank account were part of the elective share estate.


  • The court affirmed the result reached by the appeals court but for different reasons. 
  • Under the Sullivan rule, a decedent's estate, for purposes of ch. 191, § 5, included the value of assets held in an inter vivos trust created by the deceased spouse where the deceased spouse alone retained the power during his or her life to direct the disposition of those assets. 
  • The purpose of the rule was to prevent evasion of the elective share statute. 
  • However, the trust property at issue was not subject to plaintiff's elective share because the trust was created by a third party, the mother-in-law. 
  • When a third party created a trust and placed property in the trust, the property was not being removed--artificially or otherwise--from the elective share estate.


The court held that the assets in the bank account, but not those in the trust, could be considered part of the estate for purposes of calculating plaintiff's elective share. The court vacated the judgment that had dismissed plaintiff's complaint.

Suggested Study Aids For Wills, Trusts & Estate Law

No comments:

Post a Comment

The Evolution of Legal Marketing: From Billboards to Digital Leads Over the last couple of decades, the face of legal marketing has changed a l...