Sullivan v. Burkin
390 Mass. 864, 460 N.E.2d 571 (1984)
Sullivan created an inter
vivos trust. The income from the
trust was payable to Sullivan while he was alive and he retained the right
to revoke the trust at any time. It contained a provision that upon his
death, the contents of the trust went to Cronin Sr. and Cronin Jr.
Sullivan then put the bulk
of his estate into the trust.
Sullivan had a will that
explicitly left nothing to his wife.
Under Massachusetts State
law, a surviving spouse can chose to take an elective share of a decedent's estate in lieu of what they
were offered in the will.
The surviving spouse then
gets what they would have received if the decedent died intestate.
The Sullivans had been
separated for many years but had never bothered to get a divorce.
Sullivan died. Sullivan's
wife sued to have the contents of the trust declared part of the augmented
The augmented estate includes everything in the will, plus
everything that transfers through non-probate means (trusts, insurance, 401k,
The trust's new trustee,
Burkin claimed that the trust was not part of the augmented estate.
The Probate Court found for
Burkin and said that the trust was not part of Sullivan's estate.
Sullivan's wife appealed.
The Massachusetts Supreme Court
The Massachusetts Supreme
Court declared that after this opinion, all inter vivos trusts shall be considered to be part of the estate
of the decedent if the decedent alone retained the power during their
life to direct the disposition of the trust assets for their benefit.
That includes retaining the
ability to revoke the trust or retaining the general power of
A power of appointment is the ability of the testator to select a person who will be given the
authority to dispose of certain property under the will.
However, for this case, the
Massachusetts Supreme Court decided to stick with previous Massachusetts
precedent and declare the inter vivos trust to be valid and therefore not part of Sullivan's estate.
The basic rule that the Massachusetts
Court came up with here is that if the decedent alone possessed a general
power of appointment in a trust, then
that trust is considered part of the augmented estate, regardless of intent or motive.