Indiana Law Review


Indiana Law Review
Volume 25 1991 Number 1

ARTICLES

Transfers Prior to Marriage and the Uniform Probate

Code's Redesigned Elective Share—Why the Partnership is
Not Yet Complete

Rena C. Seplowitz*

Introduction

Elective share statutes have recently attracted attention from state

legislatures, law revision commissions, model code drafters, and com-

mentators. 1 Most notable is the 1990 revision of Article II of the

* Associate Professor of Law, Touro College, Jacob D. Fuchsberg Law Center.
A.B., 1973, Barnard College; J.D., 1975, Columbia University. The author gratefully

acknowledges the valuable comments of Professors Dan Subotnik and Sidney Kwestel and
the contribution of her research assistants, David Desmond, Michael Wasserman, Lainie

Dolinger, Murray Bach, Diedre Yablon, Michael Beer, and Denise Saggio.

1. See, e.g., S.C. Code Ann. §§ 62-2-201, -202, -205 (Law Co-op. Supp. 1990)
(the Reporter's Comments to the 1987 version of § 62-2-202 note that the section "rejects
the 'augmented estate' concept promulgated by the drafters of the Uniform Probate Code

as unnecessarily complex," although this approach was recommended in LeBlanc, The

Proposed South Carolina Probate Code, 36 S.C.L. Rev. 511 (1985)); 20 Pa. Cons. Stat.

Ann. § 2203 (Purdon Supp. 1991); Wis. Stat. Ann. § 861.17 (West 1991); Unif. Prob.

Code art. II, pt. 2, 8 U.L.A. 78 (Supp. 1991) [hereinafter U.P.C.]; First Report of
the New York Estates Powers and Trusts Law Advisory Committee (1991) [hereinafter
Advisory Committee Report]; New York Legis. Comm'n Reports and New York State
Bar Association Report on New York Est. Powers and Trusts Law § 5-1.1 (1990)
[hereinafter N.Y. Bar Report]; Kwestel & Seplowitz, Testamentary Substitutes: Retained
Interests, Custodial Accounts and Contractual Transactions — A New Approach, 38 Am.
U.L. Rev. 1 (1988); Langbein & Waggoner, Redesigning the Spouse's Forced Share, 22
Real Prop. Prob. & Trust J. 303 (1987); Oldham, Should the Surviving Spouse's Forced
Share Be Retained?, 38 Case W. Res. L. Rev. 223 (1987); Waggoner, The Multiple-
Marriage Society and Spousal Rights Under the Revised Uniform Probate Code, 76 Iowa

L. Rev. 223 (1991); Waggoner, Spousal Probate Rights in a Multiple-Marriage Society,

45 Rec. A.B. City N.Y. 339, 340 & n.6 (1990) [hereinafter Waggoner, Spousal Probate
Rights]; Note, Uniform Probate Code Section 2-202: A Proposal to Include Life Insurance
Assets Within the Augmented Estate, 74 Cornell L. Rev. 511 (1989).



2 INDIANA LAW REVIEW [Vol. 25:1

Uniform Probate Code (UPC)2 which embodies a profound philo-
sophical change in the concept and structure of the elective share in

common-law jurisdictions. Virtually alone among elective share statutes,
the UPC grapples with the elusive nature of marriage and takes into
account equitable distribution and community property models. 3 No
longer are the rationales of the elective share system, marriage as an

economic partnership, and support of the surviving spouse,4 divorced

from the specific provisions of a forced share statute. In particular,

the partnership, or marital-sharing theory of marriage, which is in-

creasingly the primary justification for the elective share (as well as

for equitable distribution and community property), underlies the re-
design of the UPC. 5

In a revolutionary move for an elective share statute, the UPC
combines the assets of both spouses in computing the augmented estate6

against which the survivor's right of election is measured. 7 To achieve
a more equitable result, particularly with respect to late-in-life multiple
marriages, the UPC bases the surviving spouse's fractional share on
the length of the marriage. 8 These features are designed to recognize

2. U.P.C. art. II, pt. 2 (Supp. 1991) (revised Article II was drafted by the National

Conference of Commissioners on Uniform State Laws and was approved in July, 1990).

3. See Wis. Stat. Ann. §§ 861.01 to -.13 (West 1991) (adopting a modified form

of the Uniform Marital Property Act); Oldham, supra note 1, at 245-46 (recommending

basing the elective share on a concept of marital partnership that looks to divorce law

to determine marital property or replacing the elective share with the Uniform Marital

Property Act); Comment, Spousal Disinheritance: The New York Solution — A Critique
of Forced Share Legislation, 7 W. New Eng. L. Rev. 881, 905-07 (1985) (arguing for
equitable distribution in cases of disinheritance); Apfel, Divorce and Death: Disparity in

Economic Rights of Spouse, N.Y.L.J., Jan. 28, 1988, at 1, col. 3 (advocating use of

equitable distribution as a model for forced share legislation).

4. See Carr v. Carr, 120 N.J. 336, 349-50, 576 A.2d 872, 879 (1990) (the principle

behind both the probate and equitable distribution statutes is that each spouse's efforts

during marriage contribute to and create marital assets); Bialczak v. Moniak, 373 Pa.

Super. 251, 255, 540 A.2d 962, 965 (1988) (Pennsylvania legislature "intended to establish

a comprehensive statutory system of providing a measure of economic security for surviving

spouses"); U.P.C. art. II, pt. 2 general comment (Supp. 1991); Kwestel & Seplowitz,
supra note 1, at 3 & n.5.

5. See U.P.C. art. II, pt. 2 general comment (Supp. 1991); Waggoner, Spousal

Probate Rights, supra note 1, at 349. The 1990 UPC is also referred to as the "redesigned"
UPC.

6. U.P.C. § 2-202 (Supp. 1991).

7. Waggoner, Spousal Probate Rights, supra note 1, at 361.

8. U.P.C. § 2-201(a) (Supp. 1991); Waggoner, Spousal Probate Rights, supra note

1, at 360. See also Langbein & Waggoner, supra note 1, at 314-21 (advocating that the
pre- 1990 UPC be modified to base the elective share on the length of the marriage and
the amount of property owned by the surviving spouse). The UPC avoids the difficult
administrative problems of tracing assets by applying a percentage based on the length

of the marriage to the spouse's combined assets. For a discussion of the UPC's accrual
system, see infra notes 194-96 and accompanying text.



1991] REDESIGNED ELECTIVE SHARE 3

each spouse's pecuniary and nonpecuniary contributions9 to the mar-

riage, the expectation that marital assets will be shared regardless of

the name in which they are titled, and lost opportunities. 10 The pre-
1990 UPC focused on an elective share that was based on the decedent's
estate augmented by certain inter vivos transfers received by the sur-

viving spouse from the decedent. 11 By combining the estates of both
spouses, the redesigned UPC rejects the traditional elective share scheme
and incorporates significant features of community property systems.

In so doing, it seeks to avoid some of the inequities inherent in the

forced share in many common-law jurisdictions and to minimize dis-
turbances of the decedent's estate plan. Because a traditional elective

share statute does not recognize that property frequently is titled ar-

bitrarily in one spouse's name, the survivor may be undercompensated
or overcompensated. 12 The UPC, in effect, casts off the shackles of
dower and the forced share that generally give the surviving spouse a

one-third interest in some or all of the decedent's property regardless

of the extent of the survivor's own estate and the proportion it bears
to the decedent's estate.

In addition to implementing the policy of marital-sharing, rede-

signed Article II, even more than its predecessor, is concerned with
preventing circumvention of the surviving spouse's right of election. 13

The inclusion in the reclaimable estate 14 of certain property arrangements

that were formerly excluded from the right of election, principally

9. Nonpecuniary contributions include care of the children and the house.

10. See U.P.C. art. II, pt. 2 general comment (Supp. 1991); Waggoner, Spousal

Probate Rights, supra note 1, at 349-50.

11. The pre-1990 UPC included probate assets and testamentary substitutes such
as revocable trusts and joint tenancies with right of survivorship in the decedent's estate.

U.P.C. § 2-202(1) (1983).

12. Undercompensation occurs if most of the marital assets are titled in the

decedent's name. Overcompensation occurs if the majority of the assets are titled in the

surviving spouse's name. Overcompensation may also occur if the surviving spouse is the
beneficiary of will substitutes that cannot be included in the elective share. See, e.g., N.Y.

Est. Powers & Trusts Law § 5-1. 1(b)(2) (McKinney 1981) (excluding insurance proceeds
even if payable to the surviving spouse); 20 Pa. Cons. Stat. Ann. § 2203(b)(2) (Purdon

Supp. 1991) (excluding insurance proceeds even if payable to the surviving spouse). The

Advisory Committee Report recommended amending § 5-1.1 to include insurance proceeds

in the net estate if the decedent retained the incidents of ownership. Advisory Committee

Report, supra note 1, at 15.

13. Compare U.P.C. § 2-202 & comment (Supp. 1991) with U.P.C. § 2-202(1)
(1983).

14. U.P.C. § 2-202(b)(2) defines the reclaimable estate as the value of certain inter

vivos property arrangements made or held by the decedent. For a discussion of testamentary

substitutes includible regardless of when created, see infra notes 203-13 and accompanying

text.



4 INDIANA LAW REVIEW [Vol. 25:1

insurance proceeds payable to persons other than the surviving spouse

and property subject to a presently exercisable general power of ap-

pointment, represents a significant step in limiting the types of evasive

devices a decedent may use to disinherit a spouse. 15

For the most part, the modifications wrought by the UPC are
positive. Nevertheless, problems remain. In its embrace of the concept

of marriage as an economic partnership, the UPC raises, but does not
always respond to, several critical issues. Some of these questions relate
to the nature of the marital partnership and the definition of partnership

assets. Others involve the classification of property acquired prior to

the formation of the partnership or marriage (although not technically

made part of the partnership's assets by being titled in both names
or explicitly used for maintenance and support of the partnership unit,

i.e., the family). Resolution of these issues requires an analysis of: (1)

whether spousal rights after dissolution of the marriage by divorce or

by death should be treated differently; (2) whether the notion of separate

property 16 should be rejected in defining the scope of the right of

election, a result that would promote the concept of marriage as a

total partnership; 17 and (3) whether the legitimate interests of children

from a prior marriage 18 can be accommodated in a total partnership

model. The UPC, in accord with the predominant equitable distribution
and community property models, appears to endorse the view that

marriage is a limited partnership with separate property theoretically

excluded from the partnership.

Another problem area in the revised UPC is the continued op-
portunity for spousal disinheritance as a result of statutory omissions.

For example, a decedent, during life, may enjoy the benefits of property
either by consumption or by economic control over its disposition.

15. See U.P.C. § 2-202(b)(2) (Supp. 1991) (including insurance proceeds, annuities,

and other transfers in the augmented estate); Kwestel & Seplowitz, supra note 1 (analyzing
the types of retained interest transfers, contractual arrangements, and custodial accounts

that should be subject to the right of election); Note, supra note 1 (advocating the

includibility of insurance proceeds in the elective share).

16. The concept of separate property, embodied in community property and eq-

uitable distribution systems, generally refers to property acquired prior to marriage or

during marriage by gift or inheritance.

17. The view of marriage as a complete partnership in which all assets of both

spouses are combined at termination, known as the "deferred community," has been

adopted in the Nordic countries, Israel, Quebec, Germany, and Switzerland. See M.

Glendon, The Transformation of Family Law 131-34 (1989).
18. The UPC is concerned with preserving the interests of children from a prior

marriage in property acquired during that marriage. See U.P.C. art. II, pt. 2 general

comment (Supp. 1991); Waggoner, Spousal Probate Rights, supra note 1, at 354. A
decedent may also have an interest in not allowing a subsequent spouse to disturb property
arrangements for the benefit of elderly parents.



1991] REDESIGNED ELECTIVE SHARE 5

Under both versions of the Code, testamentary substitutes 19 are generally

only subject to the right of election if the decedent has a beneficial

interest in the property. 20 This allows a decedent to create a trust and

reserve a power to invade the corpus for the benefit of a person other

than the spouse. The decedent has retained economic control over the
principal of the trust and sheltered unneeded assets from the claims

of the surviving spouse. To the extent that the UPC characterizes the
principal as marital partnership assets, that is, property acquired during

marriage, this result does not promote the stated goals of the redesigned

elective share.

Contrary to the marital-sharing theory, this framework enables a

decedent to prevent the surviving spouse from sharing in partnership

property at the decedent's death and to remove assets necessary for

the survivor's support. In addition, a statute that requires the retention

of a beneficial interest disregards the idea that ownership of property

not only means having the power to consume or enjoy its benefits,

but also connotes an ability to determine the beneficiaries of the

property and the timing and amounts of its distribution. 21 Thus, the

ability to dispose of property should be as significant a characteristic

for purposes of the elective share as it is for federal estate tax purposes. 22

In addition, the UPC largely ignores transfers prior to marriage,
whether outright or in the form of testamentary substitutes. 23 Insulation

19. In this Article, the term "testamentary substitute" refers to an inter vivos

transfer made without full and adequate consideration that may be subject to the surviving
spouse's right of election.

20. U.P.C. § 2-202(b)(2)(iv) (Supp. 1991); U.P.C. § 2-202(1) (1983). Under the

pre-1990 Code, the decedent must have retained a beneficial interest in the principal. The

1990 version includes beneficial interests in income or principal. U.P.C. § 2-202(b)(2)(iv)(B)

(Supp. 1991). Under the pre-1990 UPC, however, testamentary substitutes were includible
in the augmented estate only if they were created during marriage. U.P.C. § 2-202(l)(ii)

(1983). This continues to be true under the new Code except for certain insurance policies,

unilaterally severable jointly held property with right of survivorship, and property subject

to a general presently exercisable power of appointment. These property arrangements are

includible regardless of when they were created. U.P.C. § 2-202(b)(2) (Supp. 1991).
21. This is the premise underlying the recommendations for statutory change in

Kwestel & Seplowitz, supra note 1, at 57-66.
22. The ability to dispose of and enjoy property provides the basis for including

certain transfers in the gross estate for federal estate tax purposes. See I.R.C. §§ 2036-

38, 2040-42 (1986). For an elective share statute based on the federal estate tax approach,

see Del. Code Ann. tit. 12, §§ 901-02 (1987 & Supp. 1990). See also Kwestel & Seplowitz,
supra note 1, at 6 n.17 (discussing authorities that suggest using federal estate tax law

as a basis for forced share statutes); Waggoner, Spousal Probate Rights, supra note 1,

at 378 n.68.

23. Wisconsin and Missouri, which codified the common-law doctrine of transfers
in fraud of marital rights, are the exceptions to the approach used by other elective share



6 INDIANA LAW REVIEW [Vol. 25:1

of these transfers, particularly those that are will substitutes, creates

a significant opportunity for abuse. For example, prior to marriage

and possibly in contemplation of marriage, a decedent may create a
revocable trust or an irrevocable trust, reserving a life estate and a

power to invade the principal for the decedent's support and main-

tenance. The surviving spouse will be unable to elect against either of

them. Both trusts, however, will be subject to the surviving spouse's

right of election if created during marriage. When the decedent's prop-
erty interests in the trusts are the same during marriage, the trust

property, to the extent of the decedent's power, constitutes assets of

the marital partnership. Fairness mandates identical treatment of the

trusts regardless of whether the spouse was a first or subsequent spouse.

Sheltering these dispositions from the elective share may encourage
some individuals to create will substitutes prior to marriage to the
detriment of their spouses without serious detriment to themselves. The

UPC's continued failure to deal with this possibility frustrates an
avowed purpose of both versions (and any other progressive elective

share statute) to "protect the surviving spouse against so-called 'fraud

on the spouse's share.'" 24 In fact, this treatment of premarriage will

substitutes also ignores an entire body of law that gives a spouse an

interest in many of these transfers and that could have served as a
model for the redesigned UPC. Under the doctrine of antenuptial
transfers in fraud of marital rights, certain premarital conveyances,

both outright and in the form of will substitutes, have been invalidated

in whole or in part to prevent spousal disinheritance. The consequences
of excluding these transfers and ignoring this doctrine are illustrated

by the following three hypotheticals that serve as focal points throughout

this Article.

Case 1

Horace had a first wife, Fran, who died when he was sixty years
old. During their thirty-five year marriage, they held most of their

assets jointly. After Fran died, Horace made several substantial dis-
positions of his property. His main purpose in making these transfers

was to provide for himself for the remainder of his life and for his

children after death without having most of his assets pass through

his probate estate. Horace transferred $350,000 to an irrevocable inter

vivos trust pursuant to which he was to receive the income for life

and such sums from the principal as he and his son, Sam, deemed

statutes, including the UPC. See Mo. Ann. Stat. § 474.150(1) (Vernon Supp. 1990); Wis.
Stat. Ann. § 861.17 (West 1991). In addition, the redesigned UPC includes certain inter
vivos property arrangements in the elective share regardless of when they were created.

U.P.C. § 2-202(b)(2)(i)-(iii) (Supp. 1991).

24. U.P.C. § 2-202 comment (Supp. 1991).



1991] REDESIGNED ELECTIVE SHARE 7

necessary for his support and maintenance. Upon his death, the re-
maining principal was to be paid to his daughter, Doris, if living, or

if not, to her surviving issue. He transferred his house, previously
owned with Fran as tenants by the entirety and appraised at her death
at $350,000, to his son, Sam, reserving a life estate for himself.

Three years after Horace made these transfers, he married Wanda.
Up to the time of his marriage, Horace periodically transferred money
to the trust. Horace and Wanda lived in his house during their marriage.
Wanda did not know that Horace owned only a life estate. She was
also unaware of the trust's existence. At Horace's death fifteen years

later, he was survived by Wanda and his two children. He left a probate
estate of $20,000 and assets held jointly with Wanda with right of
survivorship of $100,000. The real property and trust principal were

worth $900,000. In his will, Horace left one-half of his estate to Wanda,
who had approximately $50,000 of her own assets.
Case 2

Consider the case of Wilma who was sixty years old at the death
of her first husband, Felix. They were married for thirty years and

had two children. Felix left all of his property to Wilma in his will.
After his death, Wilma kept most of her assets (worth approximately
$800,000) in her own name. At age sixty-five, Wilma married Hubert
and subsequently executed a will leaving one-half of her estate to him

and the other half to her surviving issue. She frequently stated that

she would like her children to be well provided for after her death.

Following a fifteen year marriage, Wilma died, leaving Hubert, her
two children, and a probate estate valued at $1,000,000. At Wilma's

death, Hubert had approximately $50,000 titled in his name and no
property in the form of will substitutes.

Case 3

Winnifred and Fred were married for thirty-three years and had

two children. When Winnifred was sixty-two years old, Fred died,
leaving her $400,000 in cash and securities and a house worth $350,000.

At Fred's death, Winnifred had approximately $200,000 in her own
name. Five years later, Winnifred married Horatio. After their marriage,

Winnifred transferred the house to her daughter, Dorothy, reserving

a life estate. She also created an irrevocable inter vivos trust with a

corpus of $400,000, naming herself and Dorothy as trustees. Pursuant

to the trust, the trustees were to pay Winnifred the income for life

and at her death, the principal to her son, Steven. During Winnifred's

life, the trustees had the power to make discretionary principal payments
to Winnifred and Steven. Winnifred's motives in making these transfers

were to provide for her children and to reduce the size of her probate

estate. Horatio and Winnifred were married for fifteen years when
Winnifred died. She left her entire probate estate of $50,000 to Horatio

who had approximately $50,000 of his own assets.



8 INDIANA LAW REVIEW [Vol. 25:1

Despite the fact that in each of these three cases the decedent's

estate planning goal was to provide for children of a prior marriage

and not to disinherit the subsequent spouse, the UPC does not treat
these cases consistently. Their treatment is different because the UPC
includes certain will substitutes in the elective share only if they are

created during marriage. In the first case, under the UPC's elective
share provisions, Wanda would receive virtually nothing as a conse-
quence of Horace's death. 25 Horace had a small probate estate, a

modest amount of property held jointly with Wanda with a right of
survivorship, and a large amount of property in the form of will
substitutes created prior to marriage. In the second case, however,

Hubert was comfortably provided for because Wilma did not create
any will substitutes. Even if Wilma left Hubert nothing in her will,
he would receive approximately fifty percent of her large probate estate

by exercising his right of election. In Case 3, the UPC grants Horatio
a right of election because of the testamentary substitutes established

by Winnifred during their marriage.

These results appear contradictory because Horace, Wilma, and

Winnifred had essentially the same power over and interest in the

property during life and at death. In each case, the decedent's economic

power over or use of the property was equivalent to ownership.26

Furthermore, their family situations were comparable: Horace, Wilma,

and Winnifred were primarily concerned with providing for the children

of their first marriage and did not have the express intention of

disinheriting his or her surviving spouse. Thus, there seems to be no

reason for an elective share statute to distinguish among the three
cases.

In its emphasis on the interests of the children from a prior

marriage, the UPC overlooks the contribution of the late-in-life sur-
viving spouse and the fact that the property used to support the older

couple is income frequently derived from premarriage property. The

rights of the beneficiaries of the transferred property, often children

from a prior marriage, can still be protected under an approach that

balances the interests of the surviving spouse and the children. 27 As
with testamentary substitutes created during marriage, their interest will

be subject to diminution, not elimination, by the exercise of a right

25. This would not be true if the will substitutes were created during marriage as

in Case 3. See N.Y. Est. Powers & Trusts Law § 5-1. 1(b)(1) (McKinney 1981); 20 Pa.
Cons. Stat. Ann. § 2203 (Purdon Supp. 1991); U.P.C. § 2-202(b)(2)(iv) (Supp. 1991).

26. See supra notes 21-22 and accompanying text.

27. But cf. Wis. Stat. Ann. § 861.17(2) (repealed 1985) (providing that "fraud-

ulent" premarriage transfers for the benefit of children of a former marriage are not

subject to the right of election). For the text of this section, see infra note 129.



1991] REDESIGNED ELECTIVE SHARE 9

of election. Furthermore, the children's interests in premarriage (or

post-wedding) transfers can be secured if, after disclosure by Horace

(or Winnifred), Wanda (or Horatio) consents to them and waives the
right of election. 28 The UPC is not alone in this inconsistent treatment
of testamentary substitutes. Many elective share statutes either ignore
testamentary substitutes entirely or include only a limited number in
the augmented estate.

Case 1 involves transfers prior to the contemplation of marriage

or engagement. Assume for a moment that in Case 1, Horace created
the will substitutes after his engagement, but before his marriage to

Wanda. Would the proximity of the transfers to the upcoming marriage
produce a different result under the UPC? Are Horace's additions to
the irrevocable trust during the engagement relevant? Nothing in the

UPC or its comments suggests that transfers in contemplation of mar-
riage are subject to the right of election. Nevertheless, under the

common-law doctrine of antenuptial transfers in fraud of marital rights,
these transfers could be invalidated under the appropriate circumstances.

For example, if Horace made these transfers for the express purpose
of defrauding Wanda of her right to an elective share, the transfers
are voidable. Although the doctrine is antithetical to the UPC's objective
approach to testamentary substitutes, it deals with an important area

ignored by the UPC and most elective share statutes.
A principal premise of this Article is that any elective share system

designed to prevent or to deter spousal disinheritance must critically

examine the appropriate treatment of antenuptial conveyances. Its en-

dorsement of the UPC's inclusion of testamentary substitutes based on
objective criteria precludes support for a doctrine grounded on a de-

cedent's subjective intent. Because an elective share statute should focus

on the decedent's power over and interest in property at death, the

time of the creation of a testamentary substitute should be immaterial. 29

Regardless of whether Horace created the trust and life estate either

before he met Wanda or on the eve of marriage, this author takes
the position that the UPC (or any other elective share statute) should
give Wanda a right to elect against these transfers. Due to the special
nature of the life estate, subjecting the principal to the right of election

may not be desirable when a decedent created the life estate prior to
marriage. Instead, consideration should be given to granting the sur-

28. See U.P.C. § 2-204 (Supp. 1991) (allowing written waiver of right of election).

Disclosure of antenuptial transfers without the prospective spouse's written consent is

arguably sufficient to bar a right of election. Requiring a written waiver would seem

preferable because it should produce less litigation and a clearer indication of the surviving

spouse's understanding.

29. But see U.P.C. § 2-202 comment (1983).



10 INDIANA LAW REVIEW [Vol. 25:1

viving spouse a right to elect against the income interest for the

remainder of the spouse's life. 30

This Article begins with an examination of the historical background

of the common-law doctrine of antenuptial transfers in fraud of marital
rights and its relationship to the elective share. Although this Article

rejects the specific approach of this doctrine, the author finds that it

provides invaluable insights into both intentional and unintentional

spousal disinheritance and serves as an important guide in correcting

a serious omission in the UPC and other elective share statutes. In
the majority of cases invalidating an antenuptial conveyance, the de-

cedent retained an interest in or power over the transferred property,

although this element was never a formal requirement of the doctrine.

Surprisingly, many courts are often more sensitive to the retention of
interests and powers in premarriage than in marital transfers. Next,

the Article examines several statutory approaches, including certain

prenuptial transfers in the forced share, that may serve as alternative
models to the common-law doctrine.

The Article will then analyze and evaluate the UPC's adoption of
the marital-sharing theory of marriage, discuss a total partnership theory

as an alternative, and examine the UPC's treatment of prenuptial
transfers of property. Specifically, it will focus on whether the exclusion

of these prenuptial transfers promotes the goals of marital partnership

or support. In the course of its examination of the common-law doctrine
and the statutory approaches, the Article will analyze the deficiencies

of each model in light of the policies of the elective share. Finally, it

will propose guidelines that better accomplish these goals and close a

significant loophole in the UPC and other statutory and common-law
schemes. The guidelines used should effectively and equitably protect
the surviving spouse, produce greater certainty in property arrangements

for the benefit of the decedent's family, and reduce the likelihood of

litigation.

I. The Problem Presented—Toward an Integrated Treatment
of Transfers Prior to and During Marriage

Transfers of property by prospective spouses to third persons have

long been a concern of legal systems. 31 Originally, a woman was

30. For a discussion of three approaches to the includibility of retained life estates

created prior to marriage, see infra pages 60-61.

31. For example, under Jewish law, a woman may generally dispose of her property
before marriage. If she misrepresents what she has done to her intended husband, however,

her fraud may provide a basis for annulling the marriage on the theory that she entered
the marriage with a concealed defect. The transfer itself, on the other hand, is valid. See



1991] REDESIGNED ELECTIVE SHARE 11

motivated to make such transfers because her husband acquired the
right to manage and consume her property upon marriage. 32 For the
prospective husband and wife, the transfer was generally designed to

prevent the spouse from realizing any interest in his or her property

upon death. If the transfer in either case was a fraud on the spouse's
marital rights, regardless of the decedent's retention of any interest in

or control over the property, it could be invalidated in whole or in

part under the doctrine of antenuptial transfers in fraud of marital

rights. 33 This doctrine, which originated in England to protect husbands

from transfers of property made by their prospective wives, 34 was
applied in the United States35 largely against husbands who transferred

Babylonian Talmud, Seder Nashim II: Tractate Kethuboth 78a (Soncino ed. 1936).
As a general rule, misrepresentation of one's financial condition does not furnish a ground

for annulment in this country. See, e.g., Woronzoff-Daschkoff v. Woronzoff-Daschkoff,

303 N.Y. 506, 104 N.E.2d 877 (1952); Francis v. Francis, 21 V.I. 263, 264-65, 11 F.L.R.

1269 (1985). To annul a marriage based on fraud, courts generally require misrepresentation
with respect to: (1) pregnancy (Reynolds v. Reynolds, 3 Allen 605 (Mass. 1862)); (2)

physical or mental health (Stone v. Stone, 136 F.2d 761 (D.C. Cir. 1943)); or (3) intent

to consummate the marriage (Marshall v. Marshall, 212 Cal. 736, 300 P. 816 (1931);
Security-First Nat'l Bank v. Schaub, 71 Cal. App. 2d 467, 162 P.2d 966 (1945); Chipman

v. Johnston, 237 Mass. 502, 130 N.E. 65 (1921); Anders v. Anders, 224 Mass. 438, 113

N.E. 203 (1916); Schonfeld v. Schonfeld, 260 N.Y. 477, 184 N.E. 60 (1933); Avnery v.

Avnery, 50 A.D.2d 806, 375 N.Y.S.2d 888 (1975)). But see Comment, Husband and

Wife—Conveyances Before Marriage as Fraud on Wife, 8 III. L. Rev. 500 (1913) (suggesting
that annulment is the proper remedy for an antenuptial transfer in fraud of marital rights).

32. See infra text accompanying notes 73-75.

33. For a discussion of this doctrine, see W. Macdonald, Fraud on the Widow's
Share 354-65 (1960); Bregy & Wilkinson, Antenuptial Transfers as Frauds on Marital
Rights in Pennsylvania, 90 U. Pa. L. Rev. 62 (1941); Lowe, Transfers in Fraud of Marital

Rights, 26 Mo. L. Rev. 1 (1960) (discussing the doctrine's application in Missouri); Vaughan,
Antenuptial Conveyance or Agreement Intended to Defeat Right of Election, 32 St. John's

L. Rev. 174 (1958) (discussing the doctrine's application in New York).
34. See, e.g., St. George v. Wake, 1 My. & K. 610, 39 Eng. Rep. 812 (1833);

Goddard v. Snow, 1 Russ. 485, 38 Eng. Rep. 187 (1826); DeManneville v. Crompton, 1

V. & B. 354, 35 Eng. Rep. 138 (1813); Strathmore v. Bowes, 1 Ves. jun. 22, 30 Eng.
Rep. 211 (1789), aff'd sub nom. Bowes v. Bowes, 6 Brown 427, 2 Eng. Rep. 1178 (1797);
King v. Cotton, 2 P. Wms. 674, 24 Eng. Rep. 912 (1732); Carlton v. Earl of Dorset, 2
Vern. 17, 23 Eng. Rep. 622 (1686); Hunt v. Matthews, 1 Vern. 408, 23 Eng. Rep. 549

(1686); Howard v. Hooker, 2 Chan. Rep. 81 (1672-73).
35. Historically, in the United States, the doctrine was applied to invalidate transfers

by both prospective husbands and wives. See, e.g., Swaine v. Perine, 5 Johns. Ch. 482

(N.Y. 1821) (prospective husband's transfer to daughter of a deed fraudulent as to wife's

dower rights and as to subsequent creditors); Littleton v. Littleton, 18 N.C. 327, 330

(1835) (invalidating deed that was made 15 days before marriage for the benefit of the
children of a prior marriage to the extent of the widow's dower interest based on a statute

providing that "conveyances made fraudulently . . . with the intention to defeat the widow
of her dower . . . shall be held and deemed void"). At least one case, however, indicated



12 INDIANA LAW REVIEW [Vol. 25:1

their real property, 36 and sometimes their personalty, prior to marriage. 37

Thus, although the doctrine was initially used in the United States to

safeguard the husband's rights in his wife's property,38 it was applied

in most instances to preserve the wife's inchoate right of dower. 39

Subsequently, the doctrine was expanded in a number of jurisdictions
to protect the surviving spouse's forced share in the decedent's real

and personal property.40

The elements of fraud required by the doctrine differed markedly

from those comprising the usual fraud case.41 Because the rights protected

by the common-law doctrine did not arise until marriage or death, the
prospective spouse did not have any existing property interests of which

he or she could be defrauded.42 In effect, any misrepresentation or non-

in dicta that the doctrine only applied to prenuptial transfers by women. See Peay v.

Peay, 2 S.C. 409 (1844). This statement was harshly criticized in Brooks v. McMeekin,

37 S.C. 285, 304-05 (1892), on the ground of safeguarding a woman's right to be supported

by her husband.

36. See, e.g., Chandler v. Hollingsworth, 3 Del. Ch. 99 (1867).

37. See, e.g., LeStrange v. LeStrange, 242 A.D. 74, 273 N.Y.S. 21 (1934).

38. See, e.g., Poston v. Gillespie, 58 N.C. 258 (1859); Ramsay v. Joyce, 1 McMul.

Eq. 236 (S.C. 1841).

39. See, e.g., Chandler, 3 Del. Ch. at 99 (applying the doctrine only to antenuptial

transfers of realty).

40. See, e.g., LeStrange, 242 A.D. at 74, 273 N.Y.S. at 21.

41. Actual fraud has been defined as an "intentional deception to induce another

to part with property or to surrender some legal right, and which accomplishes the end

designed." Stanley v. Sewell Coal Co., 169 W. Va. 72, 76, 285 S.E.2d 679, 683 (1981).
Actual fraud differs from constructive fraud which does not require proof of a fraudulent

intent to protect important societal interests. Id. See also Perlberg v. Perlberg, 18 Ohio

St. 2d 55, 247 N.E.2d 306 (1969). Many courts that applied the doctrine of transfers in
fraud of marital rights to invalidate a prenuptial conveyance did so on a finding of

constructive fraud. See, e.g., Chandler v. Hollingsworth, 3 Del. Ch. 99, 113 (1867) (in

the absence of misrepresentation, nondisclosure of an antenuptial conveyance will support

a finding of constructive fraud and will invalidate the portion of the transfer that is

necessary to protect the wife's dower rights); Cranson v. Cranson, 4 Mich. 230 (1856)

(invalidating a prospective husband's transfer of realty to his children prior to marriage

on the ground that he did not deliver the deed until after the marriage, but even if he

had delivered it before marriage, it would have been fraudulent because it was executed

secretly for the purpose of cutting off her dower); Arnegaard v. Arnegaard, 7 N.D. 475,

75 N.W. 797 (1898) (invalidating a husband's transfer of real estate with a reserved life

estate two months before marriage to the extent of the wife's homestead right on the

ground that the husband failed to disclose the transfer); Ward v. Ward, 63 Ohio St. 125,
57 N.E. 1095 (1900) (invalidating a prospective husband's transfers of land to three of

his children within a week of marriage as a fraud on his prospective wife's dower rights

because he failed to disclose the transfer).

42. Compare Perlberg v. Perlberg, 18 Ohio St. 2d 55, 247 N.E.2d 306 (1969) (in
the absence of a right to dower existing prior to marriage and a showing of actual fraud,

nondisclosure of a transfer of real property one day before marriage will not constitute



1991] REDESIGNED ELECTIVE SHARE 13

disclosure could be viewed as a fraudulent inducement to marry.43 The

appropriate remedy was an annulment. 44 The doctrine, however, did not

develop in this way. Instead, the remedy focused on undoing the transfer

instead of the marriage. The doctrine developed independently of common-
law dower and the elective share system and frequently failed to be

integrated into elective share law. Consequently, the relief granted was

sometimes broader than that given by the forced share.45

As a rule, elective or forced share statutes guarantee the surviving

spouse a portion of the property owned by the decedent at death regardless

of when it was acquired. 46 The majority of forced share statutes do not

reach property that the decedent transferred without consideration to a

third person either before or during marriage,47 even if the decedent retained

constructive fraud) with Chandler v. Hollingsworth, 3 Del. Ch. 99, 111, 119 (1867) (stating

that "[t]he true ground of relief is not the disappointment of an expectation, but fraud

upon a legal right, that is, the right to a marriage without any secret alteration of the

circumstances of the parties as they stood at the time of the engagement," and indicating

that only courts of law require legal seisin for the protection of dower).

43. Initially, courts found that constructive fraud based on a failure to disclose

was sufficient to invalidate the transfer in whole or in part. Later courts, however, required

an actual misrepresentation or a material omission with an intent to deceive and reliance

by the other spouse. See supra note 41.

44. For a discussion of misrepresentation as a basis for annulment, see Bregy &
Wilkinson, supra note 33, at 75 (concluding, without explanation, that an "annulment

of the marriage would ... be inappropriate even if annulments or divorces could be

granted on this ground, which, of course, they cannot").

45. Dower and the forced share would only give the surviving spouse a fractional

interest in the property. See Vaughan, supra note 33, at 182 (with respect to "voidable

transfers of property, it may be that the rights of a person not yet married but engaged
to be married are superior to the rights possessed as against property transactions occurring

after marriage").

46. Georgia is the only noncommunity property state that does not provide for

common-law dower or a forced share. The sole protection afforded the surviving spouse

is a year's support. Ga. Code Ann. § 53-5-1 (1982 & Supp. 1988). See Note, Preventing
Spousal Disinheritance in Georgia, 19 Ga. L. Rev. 427 (1985) (urging extension of the

equitable property division concept to Georgia probate law in order to recognize each

spouse's presumed contribution to the family wealth); Note, The Protection of the Surviving

Spouse Against Disinheritance: A Search for Georgia Reform, 9 Ga. L. Rev. 946 (1975)
(providing history and policy of protection against disinheritance). As a rule, community

property systems provide the surviving spouse with one-half of the decedent's property

acquired during marriage irrespective of the name in which it is titled. Therefore, antenuptial

transfers of nonmarital property are generally not a concern in community property

jurisdictions. Consequently, this Article will deal primarily with the rights of surviving

spouses in noncommunity property jurisdictions.

47. This was not completely true under common-law dower which generally gave

the widow a life interest in one-third of any property of which her husband was seised

of an inheritable estate at any time during their marriage. Thus, during marriage, the

husband had no power to transfer real property to a third party free of his wife's dower

rights. See W. Macdonald, supra note 33, at 59-64.



14 INDIANA LAW REVIEW [Vol. 25:1

certain interests in the property.48 Consequently, these statutes enable the

decedent effectively to disinherit the surviving spouse and to enjoy economic

control over the property. To avoid this circumvention of elective share
statutes, courts in some jurisdictions adopted common-law rules that
invalidated certain transfers as fraudulent or illusory. 49 This case-by-case

approach frequently produced confusion and inequitable results. In re-

sponse, some states enacted legislation that subjected certain types of

transfers to the right of election based on objective criteria. 50 These transfers

generally involve either a retention of control over the disposition of the

transferred property or a beneficial interest in it. Principal among these
arrangements are joint tenancies,51 Totten trusts,52 revocable trusts, 53 and

retained life interests. 54 This approach was also adopted by the Uniform

48. See, e.g., S.C. Code Ann. §§62-2-201, -202, -205 (Law. Co-op. Supp. 1990)
(giving the surviving spouse a right to elect one-third of the property passing under the

decedent's will and by intestacy).

49. The history of judicial attempts to prevent disinheritance of the surviving spouse

has been discussed extensively. See, e.g., W. Macdonald, supra note 33, at 67-144; Clark,
The Recapture of Testamentary Substitutes to Preserve the Spouse's Elective Share: An
Appraisal of Recent Statutory Reforms, 2 Conn. L. Rev. 513, 518-22 (1970); Kurtz, The

Augmented Estate Concept Under the Uniform Probate Code: In Search of an Equitable

Elective Share, 62 Iowa L. Rev. 981, 993-1006 (1977); Powers, Illusory Transfers and

Section 18, 32 St. John's L. Rev. 193 (1958).

50. See, e.g., N.Y. Est. Powers & Trusts Law § 5-1. 1(b)(1), (c) (McKinney 1981);
20 Pa. Cons. Stat. Ann. § 2203 (a) (Purdon Supp. 1991). These statutes served as models

for the formulation of the pre-1990 UPC. See U.P.C. § 2-202 comment (1983). The
original version of the UPC was approved by the National Conference of Commissioners
on Uniform State Laws and the American Bar Association in 1969. Nine states have

enacted all or part of pre-1990 UPC § 2-202. See Alaska Stat. § 13.11.075 (1985); Colo.
Rev. Stat. § 15-11-202 (1987); Idaho Code § 15-2-202 (1979); Me. Rev. Stat. Ann. tit.

18-A, §2-202 (1964 & Supp. 1990); Mont. Code Ann. § 72-2-705 (1989); Neb. Rev.
Stat. § 30-2314 (1989); N.D. Cent. Code § 30.1-05-02 (Supp. 1989); S.D. Codified Laws

Ann. § 30-5A-2 (1984 & Supp. 1991); Utah Code Ann. § 75-2-202 (1978).
51. See, e.g., N.Y. Est. Powers & Trusts Law § 5-1. 1(b)(1)(D) (McKinney 1981);

20 Pa. Cons. Stat. Ann. § 2203(a)(4) (Purdon Supp. 1991); U.P.C. § 2-202(b)(2)(ii),

(iv)(C) (Supp. 1991); U.P.C. § 2-202(l)(iii) (1983).

52. See, e.g., N.Y. Est. Powers & Trusts Law § 5-1. 1(b)(1)(B) (McKinney 1981);
20 Pa. Cons. Stat. Ann. § 2203(a)(3) (Purdon Supp. 1991); U.P.C. § 2-202(b)(2)(iv)(B)

(Supp. 1991); U.P.C. § 2-202(l)(ii) (1983).

53. See, e.g., N.Y. Est. Powers & Trusts Law § 5- 1.1 (b)(1)(E) (McKinney 1981);
20 Pa. Cons. Stat. Ann. § 2203(a)(3) (Purdon Supp. 1991); U.P.C. § 2-202(b)(2)(iv)(B)

(Supp. 1991); U.P.C. § 2-202(l)(ii) (1983).

54. See, e.g., 20 Pa. Cons. Stat. Ann. § 2203(a)(2) (Purdon Supp. 1991); U.P.C.

§ 2-202(b)(2)(iv)(A) (Supp. 1991). The New York statute does not include transfers with
retained life interests in the net estate although these dispositions were discussed by the

Bennett Commission which drafted EPTL § 5-1.1. See Governor and Legislature of
New York, Third Report of the Temporary State Commission on the Modernization,
Revision and Simplification of the Law of Estates: Right of the Surviving Spouse



1991] REDESIGNED ELECTIVE SHARE 15

Probate Code. 55

Testamentary substitutes, with some exceptions, must be created while

the decedent is married to the surviving spouse to be subject to the

surviving spouse's right of election under these statutory schemes. 56 A
surviving spouse generally has no right to elect against assets that the

decedent transferred to a third person prior to marriage. 57 Thus, under

these statutes, a decedent, whether or not in contemplation of a future

marriage, may disinherit a surviving spouse by transferring property to
third parties prior to marriage while retaining a beneficial interest in or

control over the property until death.

The only restriction on these retained interests or outright transfers

prior to marriage was the transfer in fraud of marital rights doctrine.

The doctrine frequently prevented the disinheritance of the surviving

spouse in situations in which dower and the forced share were inap-

plicable. However, the difficulties of proving when a transfer was made
in contemplation of marriage, 58 the elements constituting fraud, including

with Reference to Non-Testamentary Transfers (1964) [hereinafter Third Report]

(Report No. 1.5C). The Third Report expressed its concern "with the situation where . . .

the settlor reserves to himself either a life estate or a power of revocation or power of

control or any combination of these." Id. at 124 (emphasis added). In this report, the

New York State Bar Association Committee on Trusts and Estates contended that a transfer
pursuant to which "practical control of the beneficial enjoyment of the property has been

retained during the transferor's lifetime" should be "considered subject to the elective

rights of the surviving spouse." Id. at 138. Ultimately, the Bennett Commission summarily

rejected that view, asserting that "the surviving spouse should not be given a right of

election merely because 'practical control of the beneficial enjoyment of the property has

been retained during the transferor's lifetime.'" Id. at 138-39 (emphasis added). This

author believes that these transfers should be included in the net estate for elective share

purposes. See also Kwestel & Seplowitz, supra note 1, at 57-59 (arguing that property
transferred subject to a retained life interest should be subject to the right of election).

The Advisory Committee Report recommended including transfers subject to retained life

interests in the net estate if the transfer was effected during marriage. Advisory Committee

Report, supra note 1, at 15-16.

55. U.P.C. § 2-202(b)(2)(ii), (iv)(A)-(C) (Supp. 1991).

56. See, e.g., N.Y. Est. Powers & Trusts Law § 5-1. 1(b)(1) (McKinney 1981);
20 Pa. Cons. Stat. Ann. § 2203(a)(2), (4)-(6) (Purdon Supp. 1991); U.P.C. § 2-202(b)(2)(iv)

(Supp. 1991). But see Mo. Ann. Stat. § 474.150(1) (Vernon Supp. 1990); Wis. Stat.

Ann. § 861.17(l)(a) (West 1991); U.P.C. § 2-202(b)(2)(i)-(iii) (Supp. 1991).

57. See, e.g., In re Estate of Scheiner, 141 Misc. 2d 1037, 1038, 535 N.Y.S.2d

920, 921 (1988) (stating that United States Treasury bonds were exempt from the right

of election because they were purchased before marriage and also fell within the exclusion

of EPTL § 5-1. 1(b)(2)).
58. For a discussion of whether a decedent was required to consider the possibility

of marriage at some future time or to be engaged to a specific person, see Higgins v.

Higgins, 219 111. 146, 76 N.E. 86 (1905). Most jurisdictions required an actual engagement.

Jarvis v. Jarvis, 286 111. 478, 122 N.E. 121 (1919); Beechley v. Beechley, 134 Iowa 75,

108 N.W. 762 (1906).



16 INDIANA LAW REVIEW [Vol. 25:1

whether reliance on the prospective spouse's statements and misrepre-

sentation or merely a failure to disclose were necessary, 59 and any

exceptions to the rule, 60 produced inconsistent results and much litigation.
For the same reasons that the fraud on the surviving spouse test used

to evaluate transfers made during marriage proved ineffective and un-
satisfactory in the elective share area, 61 the doctrine as applied to pre-

marital transfers also has serious defects. The doctrine certainly is not

based on the objective criteria that are the product of the more progressive

elective share statutes such as the UPC, as well as the Pennsylvania
Estates Act and the New York Estates, Powers and Trusts Law (EPTL).62

Despite its shortcomings, the doctrine in its modern incarnations has

been codified in several states63 and continues to be applied under the

common law in numerous jurisdictions. Theoretically, whether the de-
cedent retained any control over or interest in the property at death

59. Courts disagreed as to whether reliance and actual misrepresentation, rather than

nondisclosure, were necessary elements of this cause of action. See infra note 123.

60. Some courts upheld transfers if the beneficiaries were children of a prior
marriage. See, e.g., Trabbic v. Trabbic, 142 Mich. 387, 105 N.W. 876 (1905) (commending
prospective husband for providing for children where antenuptial transfers consisted of

part of a large estate); Perlberg v. Perlberg, 18 Ohio St. 55, 247 N.E.2d 306 (1969)

(recognizing that transferring real property to children of a prior marriage may be morally
and socially meritorious); King v. Cotton, 2 P. Wms. 674, 24 Eng. Rep. 912 (1732); Hunt
v. Matthews, 1 Vern. 408, 23 Eng. Rep. 549 (1686).

61. See Third Report, supra note 54, at 123 (finding "that the case law has been

confusing and that the expectancy of the surviving spouse has not been adequately

protected"); W. Macdonald, supra note 33, at 3-19, 67-144 (discussing judicial confusion,
increased litigation, and tests applied by the courts to inter vivos transfers).

62. N.Y. Est. Powers & Trusts Law § 5-1.1 (McKinney 1981); 20 Pa. Cons.
Stat. Ann. § 2203 (Purdon Supp. 1991); U.P.C. § 2-202 (Supp. 1991); U.P.C. § 2-202

(1983).

63. See, e.g., Mo. Ann. Stat. § 474.150(1) (Vernon Supp. (1990) (subjecting "[a]ny

gift made by a person, whether dying testate or intestate, in fraud of the marital rights

of his surviving spouse" to the right of election); Wis. Stat. Ann. § 861 . 17(l)(a) (West

1991). Wisconsin codified the transfer in fraud of marital rights doctrine in 1969 to apply

to dispositions of property both during marriage and "in anticipation of marriage for

the primary purpose of defeating the rights of the surviving spouse." Originally, the

statute insulated transfers for the benefit of issue by a prior marriage that were made

before marriage or within one year after marriage from attack as a fraudulent property

arrangement. Wis. Stat. Ann. § 861.17(2) (repealed 1985). The statute did not define

"anticipation of marriage;" therefore, it was unclear whether pre-engagement transfers

were subject to challenge. The purpose of the statute was "to prevent depletion of the

probate estate at the expense of the surviving spouse." Id. § 861.17 comment. In noting

that the committee proposing the legislation considered and rejected the Pennsylvania and

New York approaches, the comment recognized that "the test of 'primary purpose' [may
be] ... difficult of proof, [but] it has the advantage of being familiar." Id. See infra

notes 129-30.



1991] REDESIGNED ELECTIVE SHARE 17

under a fraud doctrine is largely immaterial. 64 In this way, the doctrine

is also inconsistent with the approach of the UPC, the EPTL, and the
Pennsylvania statute which include, for the most part, only testamentary

substitutes in the augmented or net estate. 65

New York, Pennsylvania, and UPC states, although enacting ob-
jective criteria to determine the includibility of testamentary substitutes

created during marriage in the net estate, have not dealt explicitly with

whether transfers (outright or otherwise) made prior to marriage and in
fraud of marital rights are valid. 66 Clarification is therefore needed to

determine the validity of such premarriage fraudulent transfers under

these statutory schemes and to determine whether the doctrine, if still

viable, applies to outright as well as retained interest transfers. More
importantly, analysis of whether the standards formulated by these stat-

utes should apply to all antenuptial transfers, such as the situation

presented by Case 1, regardless of whether they were made in contem-
plation of marriage, is critical. As the UPC and state elective share
statutes extend the protection given to the surviving spouse by including

more post-wedding transfers within the net estate,67 decedents will have
an incentive to make such conveyances prior to marriage.68 State leg-
islatures, model codes, and commentators have not dealt with this prob-

lem in a comprehensive or objective way.69 Many antenuptial transfers

64. Nevertheless, a review of the cases applying the doctrine reveals that the vast

majority involve some form of retained interest in or power over the transferred property.

65. As used in this Article, the terms "augmented estate" and "net estate" refer

to property that is subject to the surviving spouse's right of election.

66. See, e.g., N.Y. Est. Powers & Trusts Law § 5-1.1 (McKinney 1981); 20 Pa.
Cons. Stat. Ann. § 2203 (Purdon Supp. 1991); U.P.C. § 2-202 (1983). This is also true

with respect to the testamentary substitutes enumerated in § 2-202(b)(2)(iv) of the revised

UPC.
67. The trend in the law has been to expand the protection afforded to the surviving

spouse. See supra note 50 and accompanying text.

68. Compare the discussion relating to the motives in acquiring insurance in U.P.C.

§ 2-202 comment (Supp. 1991) with U.P.C. § 2-202 comment (1983).
69. The articles dealing with the doctrine of antenuptial transfers in fraud of marital

rights have examined its application critically, but have not suggested replacing it with a

more objective approach as is recommended here. See, e.g., W. Macdonald, supra note
33, at 354-65 (recognizing antenuptial transfers as a separate category); Bregy & Wilkinson,
supra note 33, at 62-63, 74-76 (approving the decision in Kirk v. Kirk, 340 Pa. 203, 16

A.2d 47 (1940), which made the requirements for proving fraud more stringent); Lowe,
supra note 33 (discussing the doctrine in Missouri); Vaughan, supra note 33 (discussing

the doctrine in New York). Macdonald urged applying a "reasonableness" test to determine
whether a prenuptial transfer is subject to the right of election. See W. Macdonald,
supra note 33, at 364-65. Recently, however, the Advisory Committee recommended the

inclusion of revocable testamentary substitutes in the net estate regardless of whether they

were created before or during marriage. Advisory Committee Report, supra note 1, at

15-16.



18 INDIANA LAW REVIEW [Vol. 25:1

continue to be evaluated independently of marital transfers on the as-

sumption that different standards are appropriate to determine whether

such dispositions should be subject to dower or the right of election. 70

Separate treatment of testamentary substitutes created before and

during marriage does not promote the policies of elective share statutes.

To the extent the surviving spouse requires property for support, whether
the testamentary substitute was created prior to marriage should be

immaterial. The other justification for the elective share, the partnership

theory of marriage, should not produce a different conclusion. Ante-

nuptial testamentary substitutes should be considered partnership assets

as long as the decedent's economic control over or benefit from the

property continued until or close to death. 71 These assets were just as

available to the decedent in terms of disposition and benefit during

marriage as they would have been if the decedent created them during

the marriage. In effect, by reserving an interest in or power over the

transferred property, the decedent brought the property into the part-

nership. This view accords with the total partnership theory of marriage.

The fact that property conveyed prior to marriage may have been
derived from a prior spouse or have been intended for the children of

a prior marriage does not justify immunizing it from any claim by the

surviving spouse. It merely means that in Case 1, Horace's children may
take less from the trust and the house subject to a retained life estate

in recognition of Wanda's contribution to the second marriage. (If Horace

70. See, e.g., Hoeffner v. Hoeffner, 389 111. 253, 59 N.E.2d 684 (1945) (indicating

that premarriage transfers are scrutinized more strictly); Toman v. Svoboda, 4 111. App.
3d 148, 280 N.E.2d 499 (1972) (articulating a different rule for premarriage and marital

transfers); Holmes v. Holmes, 3 Paige Ch. 363, 364 (N.Y. Ch. 1832) (distinguishing "cases

of underhand dealing and secret conveyances made in contemplation of marriage [as]

depending] upon an entirely different principle"); W. Macdonald, supra note 33, at 181
(stating that "separate treatment seems warranted" for antenuptial transfers). Support

also exists for limiting the surviving spouse's right of election not only to testamentary

substitutes created during marriage, but also to property owned by the decedent that was

acquired during marriage. See, e.g., Okla. Stat. Ann. tit. 84, § 44(B) (West 1990)
(providing for a right of election in one-half of the "property acquired by joint industry

of the husband and wife during coverture"); Utah Code Ann. §§ 75-2-201, -202 (1978
& Supp. 1990); Oldham, supra note 1, at 246. This view seems to reflect the influence
of those who favor applying an equitable distribution approach to the elective share area.

71. See, e.g., I.R.C. § 2036(a)(1) (1986) (including property in the gross estate for

estate tax purposes where the decedent transferred property for less than adequate and

full consideration in money or money's worth and retained "for his life or for any period

not ascertainable without reference to his death or for any period which does not in fact

end before his death — (1) the possession or enjoyment of, or the right to income from,
the property"); U.P.C. § 2-202(b)(2)(iv) (Supp. 1991) (including property transferred subject

to a retained interest or power held within two years of death).



1991] REDESIGNED ELECTIVE SHARE 19

and Fran wanted their children to receive the full amount, then Fran

should have left her property to Horace in trust, Horace should have

made outright gifts to the children, and Wanda should have waived her
right to elect against the antenuptial transfers.) The traditional approach

ignores Wanda's contribution to her marriage with Horace because the

bulk of Horace's assets were held as premarriage testamentary substitutes.

There is no evidence to indicate that Wanda's performance in Case 1

was any less valuable than Hubert's in Case 2 or Horatio's in Case 3.

Furthermore, assuming that Wanda has not consented to the transfers,
the legitimate expectations of these three surviving spouses do not differ.

The proper approach is to balance the interests of the surviving spouse
and the children of a prior marriage in testamentary substitutes created

prior to marriage, rather than using an exclusionary approach against

the spouse. 72

II. The Origins of the Doctrine in English Law

The doctrine that invalidated antenuptial transfers in fraud of marital

rights originally arose in England where it was applied solely to transfers

by prospective wives. 73 The justification for the doctrine was twofold:

to compensate the husband for his obligation to assume his wife's debts

and to support his wife during marriage. Thus, the legal rights protected

by this doctrine were primarily rights that existed during the wife's life

rather than in her estate.74 As the doctrine developed in England, it was
not applied to prenuptial transfers by the prospective husband. 75

The apparent reason for the nonapplicability of the doctrine to

antenuptial conveyances by a prospective husband was that a wife had

no legal rights to her husband's property during his life and as a practical

matter, none at his death. First, a woman had no right to enjoy or
control her husband's property during marriage although she certainly

had a right to be supported by him. The right of support was never

recognized by the English courts as providing a sufficient basis for

invalidating an antenuptial transfer by the husband. Second, a wife had

72. This balancing test was also recognized in cases applying the doctrine of

antenuptial conveyances prior to marriage. For example, in Ward v. Ward, 63 Ohio St.
125, 57 N.E. 1095 (1900), the court recognized a father's obligation to his children, but

held that he was not allowed to transfer property during his engagement without notice

to his prospective wife.

73. See infra note 80.

74. Consequently, a husband was generally required to bring an action to set aside

the conveyance during marriage, rather than after his wife's death. See, e.g., Loader v.

Clarke, 2 Mac. & G. 384, 42 Eng. Rep. 148 (1850).
75. See Chandler v. Hollingsworth, 3 Del. Ch. 99, 106 (1867) (discussing the

development of the doctrine in England).



20 INDIANA LAW REVIEW [Vol. 25:1

an inchoate dower interest in her husband's real property which he

owned as an inheritable estate during marriage. As a general rule,
however, a woman waived her dower interest before marriage by jointure
in which the prospective husband agreed to a property settlement for

the benefit of his intended wife. Due to the widespread practice of
jointure, premarriage transfers by the husband did not deprive the woman
of any legal rights because she essentially did not acquire any by

marriage. 76 This was not the case for the husband.

As formulated by the English courts, the doctrine of antenuptial
transfers in fraud of marital rights invalidated conveyances made by a
woman with the intent to keep her assets from her prospective husband
after a treaty of marriage or an engagement and before the actual

marriage. In some cases, the motive for the transfer was to prevent the

prospective husband from obtaining control of the property. In other

situations, the primary purpose was to provide for the children of a

prior marriage. Thus, the timing of the transfer, the woman's intent,

and the husband's knowledge of the conveyance77 were critical in de-

termining whether the transfer was fraudulent.

Misrepresentation or failure to disclose a property disposition is an

understandable element in an action for actual or constructive fraud.

Yet, why was the timing such a critical factor both in England and
later in the United States? Theoretically, a woman should have been
able to give her property away prior to the wedding without infringing

on her husband's rights because a man had no legal interest in a woman's
property until marriage. Nevertheless, a man often relied on the extent
of his intended wife's assets in agreeing to the marriage, 78 as well as

relying on property settlements that accompanied a treaty of marriage.

A man might decide not to go through with the marriage or might agree
to a less generous property settlement if he knew of the antenuptial

conveyance. In addition, a transfer that occurred prior to an engagement

generally would not violate a spouse's dower or other marital rights on

the theory that no imminently prospective rights existed that would allow

an inference of fraudulent intent. 79

76. Id. at 116 (noting the practice in England of jointure in which a husband

would make a settlement upon his intended wife that, if reasonable, was the equivalent

of and would bar dower).

77. Knowledge on the part of the husband could be found if he had reason to

know that his wife transferred property. See Wrigley v. Swainson, 3 De G. & Sm. 458,
64 Eng. Rep. 560 (1859). In contrast, some United States courts required that the husband

not only know, but also consent to the transfer. See infra note 89.

78. An extreme example of a case in which the husband married his wife solely
for her property can be found in Strathmore v. Bowes, 1 Ves. jun. 22, 30 Eng. Rep.

211 (1789), aff'd sub nom. Bowes v. Bowes, 6 Brown 427, 2 Eng. Rep. 1178 (1797).
79. See Melenky v. Melen, 233 N.Y. 19, 134 N.E. 822 (1922) (upholding the transfer



1991] REDESIGNED ELECTIVE SHARE 21

The English courts showed a marked reluctance to apply the
doctrine to invalidate a woman's antenuptial transfers despite a strong
endorsement of the doctrine in theory. 80 In the leading case of Strath-

of property to a son because it was made before the second marriage was contemplated
and for adequate business considerations); Bliss v. West, 58 A.D. 71, 11 N.Y.S. 374

(1890) (upholding a transfer of real estate in trust for the benefit of the children of a

prior marriage with a reserved life estate made before the engagement and possibly before

the grantor met his future wife, although he represented to her that he owned the property).

In addition, an engaged couple is considered to be in a confidential relationship that may
provide a basis for a duty to disclose. See Pierce v. Pierce, 71 N.Y. 154, 157 (1877).

80. A survey of a large number of English cases involving antenuptial transfers
indicated that generally, the prospective wife retained an interest and the court upheld

the transfer. See Downes v. Jennings, 32 Beav. 290, 297, 55 Eng. Rep. 114, 117 (1863)
(holding that a wife's transfer of a long-term leasehold seven weeks before marriage for

her benefit for life and then for the benefit of other relatives was invalid as a fraud on

the husband's marital rights because he believed that "this property of his intended wife

would enable him to support her"); Loader v. Clarke, 2 Mac. & G. 382, 387, 42 Eng.
Rep. 148, 150 (1850) (stating the general rule that if the wife's antenuptial transfer of

her annuity to trustees for her benefit for life and then to her children had been concealed

from her husband it would have been fraudulent, but because the husband must have

known of the trust, waiting until his wife's death to recover stock constituted a waiver);

Grazebrook v. Percival, 14 The Jurist 1103 (1850) (dicta that if the husband had been

alive, he could have recovered possession of stock that his wife, shortly before marriage,

had transferred in trust for herself without his knowledge); Wrigley v. Swainson, 3 De
G. & Sm. 458, 64 Eng. Rep. 560 (1849) (upholding a wife's transfer of money during
the engagement to trustees for her benefit for life, remainder to her children or, if none,

as she appointed, when her husband knew before the marriage that his wife intended to

dispose of the bulk of her property despite his ignorance of the terms of the actual trust

and had not consented to any settlement); Griggs v. Staplee, 2 De G. & Sm. 572, 64
Eng. Rep. 255 (1848) (upholding a wife's prenuptial transfer of money in trust for her

benefit in the absence of evidence that a transfer occurred after the engagement and that

the husband did not know of the disposition); Taylor v. Pugh, 1 Hare 608, 66 Eng. Rep.
1173 (1842) (upholding a wife's transfer of property in trust for the benefit of herself

and her children because her husband persuaded her to live with him before marriage,

thereby precluding her from obtaining a settlement from him); England v. Downs, 2 Beav.

522, 48 Eng. Rep. 1284 (1840) (stating the general rule and rejecting the exception when

property is derived from a prior husband and given to the children, but upholding the

wife's transfer two months prior to marriage of all of her property in trust for herself

and her children because of insufficient evidence to show that the transfer occurred after

a treaty of marriage or that the husband had no notice); St. George v. Wake, 1 My. &
K. 610, 39 Eng. Rep. 812 (1833) (upholding a wife's transfer of a small portion of her

property to her sister one month before marriage because the evidence indicated that her

husband had knowledge of the transfer prior to the marriage, he had no money of his

own, and he did not make a settlement with his prospective wife); Goddard v. Snow, 1

Russ. 485, 494-95, 38 Eng. Rep. 187, 191 (1826) (invalidating a wife's transfer of property

10 months before marriage to a trust for her benefit on the basis of the rule that "if a

woman, after contemplating marriage with an individual, make a settlement which she

conceals from her intended husband, that settlement is not good as against him"); De
Manneville v. Crompton, 1 V. & B. 354, 35 Eng. Rep. 138 (1813) (upholding a wife's



22 INDIANA LAW REVIEW [Vol. 25:1

more v. Bowes, 81 the court upheld a transfer made days before the
wedding on the ground that the woman was engaged to another man
at the time of the transfer and had informed him of the conveyance.

Despite the woman's failure to disclose the disposition of her property

to the man she actually married and the fact that he married her solely
for her property, the court found that the disposition was not a fraud

on his marital rights because he was not engaged to her at the time of

the transfer. Thus, the statement of the rule was essentially dicta. Nev-

ertheless, Strathmore has been cited repeatedly in support of this doctrine

both in England and in the United States, particularly its justification

as articulated by Lord Thurlow:

The law conveys the marital rights to the husband, because it

charges him with all the burdens, which are the consideration,

he pays for them; therefore it is a right, upon which fraud may
be committed. Out of this right arises a rule of law, that the

transfer of property to a trust for her benefit in which her husband took a partial

contingent interest without her prospective husband's knowledge because the wife never

represented to him that the note would not be canceled); Ball v. Montgomery, 2 Ves.

jun. 191, 194, 30 Eng. Rep. 588, 590 (1793) (dicta that "[i]f a woman previously to
marriage conveys her property without the privity of the intended husband, it will be

fraud"); Strathmore v. Bowes, 1 Ves. jun. 22, 30 Eng. Rep. 211 (1789), (upholding

transfer by a wife 10 days prior to marriage while engaged to another man to whom she
disclosed a settlement for the benefit of herself and her children), aff'd sub nom. Bowes

v. Bowes, 6 Brown 427, 2 Eng. Rep. 1178 (1797); Blanchet v. Foster, 2 Ves. sen. 265,

28 Eng. Rep. 171 (1751) (upholding a wife's transfer of a bond to her aunt just before

the marriage because she gave it for valuable consideration); King v. Cotton, 2 P. Wms.
674, 24 Eng. Rep. 912 (1732) (upholding transfer by a wife for the benefit of herself

and her children by a former marriage because her husband did not make a jointure for

the benefit of his prospective wife, the transfer occurred before the engagement, and it

was reasonable for her to want to provide for her children); Carleton v. Earl of Dorset,

2 Vern. 17, 23 Eng. Rep. 622 (1686) (invalidating transfer by a wife prior to marriage

because the wife was allegedly in debt and told creditors to sue her prospective husband);

Hunt v. Matthews, 1 Vern. 408, 23 Eng. Rep. 549 (1686) (upholding an antenuptial

transfer of most of a wife's assets to a trustee for the benefit of her daughter because

the husband suppressed it after marriage and the desire to provide for children of a prior

marriage was justifiable); Thomas v. Williams, 2 Ch. Rep. 79 (1672-73) (no fraud on
marital rights when during her engagement, a wife assigned to her brother money her

mother had promised her from her father's estate which belonged to her brother); Lance

v. Norman, 2 Ch. Rep. 79 (1672-73) (invalidating the transfer of money by a wife to

her brother one day before marriage without her husband's knowledge, but ordering the

husband to pay the wife an annuity for her separate maintenance); Howard v. Hooker,
2 Ch. Rep. 81 (1672-73) (setting aside a wife's transfer of her interest in her first husband's

estate to her daughter because her husband relied on her ownership of the property in

agreeing to jointure).

81. 1 Ves. jun. 22, 30 Eng. Rep. 211 (1789), aff'd sub nom. Bowes v. Bowes, 6

Brown 427, 2 Eng. Rep. 1178 (1797).



1991] REDESIGNED ELECTIVE SHARE 23

husband shall not be cheated, on account of his considera-

tion. ... A conveyance by a wife, whatsoever may be the cir-
cumstances, and even upon the moment before the marriage, is
prima facie good; and becomes bad only upon the imputation

of fraud. If a woman during the course of a treaty of marriage
with her makes without notice to the intended husband a con-

veyance of any part of her property, I should set it aside, though

good prima facie, because affected with that fraud. 82

As this excerpt from Strathmore indicates, a woman's fraudulent

intent could be gleaned from the circumstances: if the transfer occurred

during the engagement and the prospective husband did not have notice,

the transfer theoretically would be fraudulent on a constructive fraud

theory. 83

III. The Doctrine in the United States

A. The Early Period

A broad interpretation of the doctrine took root early in the United
States. In Manes v. Durante the court stated that "[i]n general, it is
not questioned that a voluntary conveyance made by a woman in con-
templation of marriage, without the knowledge of the intended husband,

will be set aside as a fraud on the marital rights." 85 By invalidating a
woman's antenuptial transfer of her slaves and personalty in trust for

the benefit of various relatives including her surviving children, the court

rejected any exception to the doctrine when the disposition favored
children. 86 The expansive scope of this doctrine was reached by likening

82. Id. at 28, 30 Eng. Rep. at 214. The court, in Goddard v. Snow, 1 Russ. 495,

38 Eng. Rep. 191 (1826), interpreted Lord Thurlow's opinion in Strathmore v. Bowes to

apply to settlements of property by a woman in which she "reserv[es] to herself the
dominion over it."

83. Nevertheless, despite this broad statement of the general rule, most of the

English courts found the antenuptial transfers in question to be valid. Parenthetically, the

court in Ward v. Ward, 63 Ohio St. 125, 127, 57 N.E. 1095, 1096 (1900), misstated the
actual practice in England when it observed that antenuptial "conveyances by the wife

are uniformly held invalid."

84. 2 Rich. Eq. 404 (S.C. 1842).

85. Id. at 405-06. Thus, an undisclosed transfer made for valuable consideration

will not be deemed to be fraudulent. See, e.g., Gregory v. Winston's Adm'r, 64 Va. 102,

123 (1873) (citing Blanchet v. Foster, 2 Ves. sen. 265, 28 Eng. Rep. 171 (1751)); Fletcher

v, Ashley, 47 Va. 332, 338 (1849).

86. Manes, 2 Rich. Eq. at 406. Some courts recognized, at least in theory, that
a premarriage transfer for the benefit of children of a prior marriage could vitiate the

fraud. See supra note 60.



24 INDIANA LAW REVIEW [Vol. 25:1

a prospective husband to a bona fide purchaser for value. As in England,

the justifications for the doctrine in the early cases in the United States

were the husband's obligation to support his wife and to assume her

pre-existing debts.
87 The liability for these debts, it was believed, gave

him an interest in his wife's property. 88 Transfers of property by a

prospective wife without the intended husband's knowledge or consent89

deprived him of more than an expectancy in her property.90 This pur-

ported justification for the doctrine is subject to question. If the intended

87. See, e.g, Arnegaard v. Arnegaard, 7 N.D. 475, 480, 75 N.W. 797, 798 (1898)
("An agreement for marriage at common law was, in effect, an agreement for a sale by
the prospective wife to the prospective husband of all her personal property, and the

transfer to him of her right to possession of all her real estate, on condition of the

assumption by him of all her debts."); Gregory v. Winston's Adm'r, 64 Va. 102, 123-

24 (1873). The husband's acquisition of his wife's property upon marriage, however, was

also justified by his obligation to maintain her. See Chandler v. Hollingsworth, 3 Del.

Ch. 99, 106 (1867). In such a case, it could be argued that the husband should be able

to reach the transferred property to the extent needed to maintain his wife.

88. See Ramsay v. Joyce, 1 McMul. Eq. 236, 252 (S.C. 1841) ("it is the familiar

law, that the husband is regarded as a purchaser of the wife's property, and that marriage

is a valuable consideration"). See also Manes v. Durant, 2 Rich. Eq. 404 (S.C. 1842).

89. Courts disagreed as to whether constructive knowledge, actual knowledge, or

consent was necessary to prevent an antenuptial transfer from being fraudulent. See Spencer

v. Spencer, 56 N.C. 404, 409 (1857) ("[t]here must be a knowledge of and assent to the

particular deed to give it the effect of barring the rights of the husband"). Compare

Fletcher v. Ashley, 47 Va. 332, 339 (1849) (Brooks, J., concurring) (knowledge is a

sufficient bar) with Johnson v. Peterson, 59 N.C. 12, 14 (1860) (conveyance by woman
on the eve of her marriage constitutes fraud upon intended husband's rights unless he

had full knowledge of the transaction and freely assented to it). Of course, establishing

knowledge or consent many years after a transfer or after the grantor's death was extremely
difficult and was responsible for many lawsuits yielding frequently inconsistent results.
See also Poston v. Gillespie, 58 N.C. 258 (1859), in which the court invalidated a woman's

transfer of land, a slave, and personalty for the benefit of herself and her son from a

prior marriage on the ground that he did not consent even though she notified her intended

husband of the transfer. The court indicated, in dicta, that a transfer is not fraudulent

if it is made by a woman before the engagement and if the man has notice at the time
of the transfer because a contract to marry did not exist at that time. The court noted

that any property transferred without consent will breach the contract, although equity

will not specifically enforce a contract to marry. Prior to courtship or contemplation of

marriage, a woman was free to dispose of her property without informing the man she
later married. Id. at 262. The controversy over whether knowledge or consent is necessary

to sustain the transfer continued after the passage of the Married Women's Property Acts.

See Taylor v. Taylor, 199 N.C. 197, 148 S.E. 171 (1929). For a case finding constructive

notice sufficient to prevent fraud, see McClure v. Miller, 1 Bail. Eq. 107, 109 (S.C. 1830)

("There was at least enough to put [the husband] upon inquiry."). In Moore v. Moore,

15 111. 2d 239, 243, 154 N.E.2d 256, 258 (1958), however, the court held that recording

a deed prior to marriage does not constitute constructive notice to a prospective wife.

90. McClure, 1 Bail. Eq. at 109 (invalidating a wife's transfer prior to marriage

for the benefit of a child when her husband, during marriage, satisfied a premarriage

debt incurred by his wife for part of the conveyed property).



1991] REDESIGNED ELECTIVE SHARE 25

husband's interest in the property was based on his liability for the

woman's debts, then the prospective wife's transfers of property should
have been overturned only to the extent of her debts. 91 The husband's

interest in the transferred property, however, was generally either total

or equal to the share that he could expect if his wife owned the property
at her death. His share could also be justified on the ground that the

husband was obligated to support his wife. Generally, no correlation

was made between a husband's interest in the transferred property and
the amount needed for support.

Strictly speaking, none of these reasons adequately supports an action

for fraud because the property was conveyed in fraud of future property

rights.
92 Nevertheless, the view of marriage as a sales contract pursuant

to which the husband undertakes onerous obligations in exchange for

the purchase of his wife's property explains why equity afforded a remedy
to what otherwise would appear to be the loss of a mere expectation.

The basis for finding fraud in the case of a disappointed expectation

was elucidated by Chief Judge Ruffin in Logan v. Simmons:^

[T]he husband shall not be cheated, on account of his consid-

eration. Now, the rights . . . are not present rights, that is,
existing at the time of the conveyance; for, a fraud on rights

of that kind, the common law would redress. They are prospective
rights — those that the husband expects to enjoy upon the
contemplated marriage by the law of the land. A husband, being
bound to pay his wife's debts and to maintain her during cov-

erture, and being chargeable by the law with the support of the

issue of the marriage, and bound by the ties of natural affection

also to make provision for the issue, it is in the nature of things,
as a matter of common discretion, that a woman's apparent
property should enter materially, if not essentially, into his in-

ducements for contracting the marriage, and incurring those

onerous obligations. 94

91. See id. (dicta that if a woman fraudulently concealed a debt and voluntarily
conveyed "her whole property, or so much of it as to leave her unable to satisfy the

debt, the husband, if he should be compelled to pay the debt, might be allowed to stand

in the place of the creditors and avoid the conveyance, although he knew of it before

the marriage;" in that case, "the actual fraudulent intention must be established").

92. An analogy can be drawn to a transfer in fraud of future creditors; however,
this should only apply if the prospective spouse is insolvent at the time of the transfer.

See Rivers v. Thayer, 7 Rich Eq. 136, 156-57 (S.C. 1855).

93. 38 N.C. 487 (1845).

94. Id. at 495. This was also the case in Spencer v. Spencer, 56 N.C. 404 (1857),

in which an engaged woman transferred her slaves a few days before her marriage,
reserving a life estate. Although her husband had the right to possess the slaves by virtue



26 INDIANA LAW REVIEW [Vol. 25:1

In Logan, on the day before her second marriage and without

informing her prospective husband, a woman deeded two slaves to her
son, reserving the first living child one of them might have. After the

marriage, the slaves, who represented the bulk of the woman's property,
resided with the couple until the wife's death ten years later. At that

time, the son claimed them based on the deed. There was no evidence

that the wife incurred any debts prior to her second marriage. Indeed,

the evidence indicated that her husband, who was somewhat impecunious,
married her for her modest property.95 The husband did not have any

prospective rights of which he was defrauded. Because his intended wife

was solvent, he did not need her property to discharge her debts. She

essentially retained a de facto life estate in the transferred slaves during

their marriage. The husband consequently enjoyed the benefits of her

property and presumably could have used the slaves to discharge his

support obligation. 96 Nevertheless, the court invalidated the earlier trans-

fer as a fraud on the husband's marital rights. The court did not include

inheritance rights among the rights of which his prospective wife allegedly
defrauded him. 97 Thus, the analytical difficulty in supporting this result

is apparent. The court was so offended by the prospective wife's con-

cealment of the transfer from her intended husband who relied on her
apparent ownership of the slaves in proceeding with the marriage that

it was not troubled by reaching a result that could not be supported

by its articulated justifications.98

A line of cases that impressed a constructive trust to remedy fraud
in preventing a decedent from executing a will and thereby protecting

the expectancy interest of the beneficiary provides a useful analogy. In

of the life estate, the court invalidated the transfer as fraudulent on behalf of the deceased

husband's creditors. The court did not appear troubled by the fact that the wife's property

was used to discharge the husband's debts and was also employed for the couple's support

during their marriage.

95. Logan, 38 N.C. at 488. It appeared that the husband, whose older wife was

in failing health, owned one mare.

96. See Waller v. Armistead's Adm'rs, 29 Va. 11, 14 (1830) (prospective wife

transferred slaves and the proceeds of a sale of real estate to her brother and his infant

son on the morning of her marriage without the knowledge of her fiance; however, the

husband lost his rights because he died during his wife's lifetime).

97. See supra note 94 and accompanying text.

98. Interestingly, the court noted that, unlike the situation in England, jointure

was not common in the United States and in fact, the man had not settled any property
on his prospective wife. The court concluded that a more stringent rule of concealment

should apply in the United States because settlements in England are preceded by inves-

tigations and the expectations of the parties are limited to the property secured by the

agreement. Logan v. Simmons, 38 N.C. 487, 497, 501 (1845). This, of course, does not

necessarily follow because a greater expectation may exist that property will not be
transferred without notice when a settlement has, in fact, been made.



1991] REDESIGNED ELECTIVE SHARE 27

Pope v. Garrett," the court imposed a constructive trust on property
that passed by intestacy to the decedent's heirs in favor of the beneficiary

named in an unexecuted will. The actions of several of the presumptive
heirs prevented the decedent from executing the will. Despite the fact

that the beneficiary had only an expectancy and no existing property

rights of which she could be defrauded at the time of the heirs' acts,

the court held that a constructive trust was appropriate to remedy the

wrongful act and to prevent unjust enrichment. 100 Thus, the heirs were

found to have defrauded the intended beneficiary of an expectancy in

the decedent's estate, just as the decedent, in a case applying the doctrine

of antenuptial transfers in fraud of marital rights, was found to have

violated an expectancy of the prospective spouse. Interestingly, marital

rights cases generally do not speak in terms of preventing unjust en-

richment. In the premarital transfer cases, the decedent was unjustly

enriched by the benefits obtained from the marriage (for which the

appropriate remedy should be annulment) or by a benefit in the un-

restricted disposition of property.

B. The Period Following the Passage of the Married Women's
Property Acts

The major justifications for the common-law doctrine disappeared
after the passage of the Married Women's Property Acts in the mid-
nineteenth century. 101 The doctrine, however, did not die, but was trans-

formed to protect the rights of the surviving spouse in the deceased

spouse's estate. 102 Thus, the focus of the doctrine changed markedly in

this country, although this change is frequently not acknowledged by

the courts. Protection of the surviving spouse's rights meant that the

doctrine could apply equally to men and women. Suits challenging the
conveyance could be brought after the transferor's death without being

subject to the defense of laches. 103

99. 147 Tex. 18, 211 S.W.2d 559 (1948).

100. Id. at 23, 211 S.W.2d at 561. In reaching its decision, the court relied on

Professor Scott's treatise on trusts which notes a conflict of authority on this point.

101. One commentator argues that the general rule enunciated in Strathmore v.

Bowes, which invalidated a settlement of property as a fraud on marital rights, is "obsolete

in consequence of the Married Women's Property Acts." Shannon, The Countess of
Strathmore versus Bowes, 1 Canadian B. Rev. 425, 427 (1923). But see Youngs v. Carter,

10 Hun. 194, 198 (N.Y. 1877) (disagreeing with the principle that applied the doctrine

only to transfers by prospective wives).

102. The transformation of the doctrine into a rule preventing spousal disinheritance

was facilitated by earlier American courts applying it to invalidate transfers by a prospective

husband in fraud of his wife's dower rights. For a discussion of the doctrine's history

in the United States, see supra note 35.

103. If the husband was defrauded of the right to possess his wife's personalty and



28 INDIANA LAW REVIEW [Vol. 25:1

The transformation of the doctrine rendered its theoretical under-

pinnings more problematic. The rationale articulated by the English and
early American courts, namely, the right of the husband to manage his
wife's realty and dispose of her personalty in return for his obligation

to support her and pay her debts, was no longer relevant. What supported
the application of the doctrine to antenuptial transfers of the wife as

well as the husband? What marital rights were defrauded? 104 Initially,
some courts spoke of the woman's justifiable expectation of support
from her husband that required some assurance that he actually owned^

property with which to fulfill this obligation. In essence, this expectation

is the counterpart of the argument used to justify the application of

the doctrine to a woman's antenuptial transfers prior to the passage of
the Married Women's Property Acts. 105 Formerly, the husband had the
right to consume and manage his wife's property to discharge his ob-
ligation to support her. After the passage of the Married Women's
Property Acts, each spouse had a reciprocal duty of support. Thus, the

wife had the right to expect her husband to use his own funds to support
her. As stated by the court in Brooks v. McMeekin:™6

[D]oes not the wife have a right to look carefully, to see if he

who would wed her has the means essential to support herself
and such offspring as a kind Providence may give her? In
England, is it not a matter of every-day occurrence that the

husband makes settlements upon the intended wife often at the

instance of his intended wife's family or friends? ... If a man
cannot be charged with indelicacy in looking into his wife's

estate, surely the woman, who at best is so unprotected, may
consider, when she is asked to marry a man, whether he has
the means to provide for her. 107

to manage her realty during marriage and learned of the transfer after the wedding, but

did not challenge it until his wife's death, the defense of laches could apply. See, e.g.,

Loader v. Clarke, 2 Mac. & G. 384, 42 Eng. Rep. 148 (1850). Cf. Babcock v. Babcock,
53 How. Pr. 97 (N.Y. 1876) (allowing a wife to sue before her husband's death to protect

inchoate dower rights where the prospective husband transferred property to his children

three days before the marriage).

104. Even before the passage of the Married Women's Property Acts, use of the
doctrine to protect a woman's dower rights was rejected in an action at law in Baker v.

Chase, 6 Hill 482, 483 (N.Y. 1843), because the "husband was not seised at any time

during the coverture." The court also questioned the doctrine's application by a court of

equity in Swaine v. Perine, 5 Johns. Ch. 482 (N.Y. 1821).

105. The husband's obligation to support his wife and assume her debts gave him

a right to her property during marriage. See supra text accompanying notes 73-74.

106. 37 S.C. 285, 15 S.E. 1019 (1892).

107. Id. at 305, 15 S.E. at 1024.



1991] REDESIGNED ELECTIVE SHARE 29

Like its counterpart, this rationale was often untenable. If the husband

retained a life estate, which was frequently the case, the property could

be utilized to support his wife; therefore, any antenuptial conveyance

generally would not have deprived her of her right to maintenance.

Consequently, she could not have been the victim of fraud.

The justification for this doctrine was not limited to the duty of

support even in Brooks v. McMeekin. The court recognized that, for

women as well as men, "marriage is a valuable consideration" pursuant
to which she acquires not only the right to comfortable maintenance,

but also the right to share in her husband's intestate estate and the

right to dower. 108 In invalidating the transfer, the court found that the

wife was defrauded of an expectancy much like the expectancy the
beneficiary was deprived of in Pope v. Garrett.

As the doctrine evolved, the central rights protected were principally

those relating to a surviving spouse's interest in the deceased spouse's

estate. These rights, for the most part, did not involve either spouse's

enjoyment of any property owned by the other during marriage, but
rather a dower interest or the expectation of receiving a forced share

of the decedent's property at death. With respect to antenuptial transfers

of personalty, the doctrine presented real problems because each spouse

generally had the right during marriage to transfer personal property

free of the other spouse's claim. At common law and under the typical
forced share statute, neither spouse had a property interest in the other

spouse's personal estate during marriage. If a spouse was free to transfer

personalty during marriage, it would seem that the spouse could make
such transfers prior to marriage. Nevertheless, the doctrine was applied

to prenuptial transfers of personalty in some jurisdictions. 109

The application of the doctrine to antenuptial transfers of realty

was less problematic, particularly with respect to transfers by prospective

108. Id. at 304, 15 S.E. at 1023. Indeed, the court in Chandler v. Hollingsworth,

3 Del. Ch. 99 (1827), found that the wife's right to dower in the United States was

extremely critical to her because of the absence of jointure. In fact, the court stated, if

anything, the woman, as "the weaker sex," needed greater protection than the man under
the doctrine because in return for dower she "surrender[ed] her person, her services, her

self-control, her means of self-support; and as to property, far more than the interest

she acquires." Although the court indicated that the existence of a marital right in dower

obviated any need to value the consideration furnished by the wife, its characterization

of the detriment suffered by the woman upon marriage influenced other courts in applying
a rule that was protective of the surviving spouse. See, e.g., Ward v. Ward, 63 Ohio St.
125, 57 N.E. 1095 (1900). Nevertheless, courts in some jurisdictions began to cut back

on the scope of the doctrine by requiring a showing of actual fraud. See, e.g., Perlberg

v. Perlberg, 18 Ohio St. 55, 247 N.E.2d 306 (1969) (overruling Ward); Kirk v. Kirk, 340

Pa. 203, 16 A.2d 47 (1940); Dudley v. Dudley, 76 Wis. 567, 45 N.W. 602 (1890).
109. See, e.g., LeStrange v. LeStrange, 242 A.D. 74, 273 N.Y.S. 21 (1934).



30 INDIANA LAW REVIEW [Vol. 25:1

husbands. Although a woman had no interest in a man's property prior
to marriage, she did have rights in the form of inchoate dower during

marriage. While she could not prevent her husband from transferring

his personal property during marriage, any transfer of realty by him

without her consent was subject to her dower right. An antenuptial
transfer of realty deprived the wife of her inchoate dower interest which

attached at the time of coverture. Of course, in jurisdictions that abolished
dower and replaced it with a forced share, allowing the overturn of

antenuptial transfers of realty raised the same conceptual problems that

existed in the case of personalty.

Generally, the development of common-law doctrines that invalidated
certain transfers during marriage did not make the doctrine any more
justifiable. First, the illusory transfer and the reality of the transfer tests

only applied to dispositions in which the spouse retained significant

powers or did not make a real transfer. 110 Particularly in its earlier
stages, the antenuptial transfer in fraud of marital rights doctrine in-

validated many retained interest transfers that would have been valid
under either the illusory transfer or reality of the transfer test. 111 Cu-

riously, in some jurisdictions, such as Pennsylvania and Ohio, as the

protection afforded to the surviving spouse increased under elective share

statutes, the scope of the doctrine became more limited with little rec-
ognition of the trend in either area or the relationship between the two

bodies of law. 112 Nevertheless, in many jurisdictions, a premarital transfer
often involved a retained life estate which, standing alone, would be

valid under the illusory transfer and the reality of the transfer tests. 113

Only the motive for the transfer test, which applied to outright as well

as retained interest transfers, was somewhat consistent with the test

applied to judge the validity of premarriage dispositions. 114 In view of

the fact that inheritance rights were protected in both premarriage and

marital transfer cases, it is difficult to comprehend these divergent

approaches.

110. See supra note 49 and accompanying text.

111. See, e.g., Spencer v. Spencer, 56 N.C. 404 (1857); Arnegaard v. Arnegaard,

7 N.D. 475, 75 N.W. 797 (1898).
112. For example, in Pennsylvania, the court in Kirk v. Kirk, 340 Pa. 203, 16 A.2d

47 (1940), overruled prior decisions that utilized a constructive fraud test to determine

the validity of antenuptial transfers. Kirk imposed an actual fraud test that required an

intent to disinherit the surviving spouse. The decision in Kirk was applauded in an article

by Bregy & Wilkinson. See Bregy & Wilkinson, supra note 33. See also infra notes 158-
59 (discussing Pennsylvania decisions) and supra note 108 (discussing Ohio decisions).

113. See, e.g., LeStrange, 242 A.D. at 74, 273 N.Y.S. at 21.

114. Compare Bodner v. Feit, 247 A.D. 119, 286 N.Y.S. 814 (1936) with Mo. Ann.
Stat. § 474.150 (Vernon Supp. 1990) (transfers made with the purpose of destroying the
spouse's right of inheritance deemed to be in fraud of the marital rights of the surviving

spouse).



1991] REDESIGNED ELECTIVE SHARE 31

The doctrine of antenuptial transfers in fraud of marital rights

protects a prospective spouse from duplicitous, nonconsensual transfers

that interfere with inheritance rights, but it has serious limitations as a

prototype for an elective share statute. Aside from the difficulties as-

sociated with a subjective test and its questionable theoretical foundations,

the doctrine generally would not provide Wanda (Case 1) with a remedy
because Horace transferred his property prior to their engagement. The

only relief it might provide would be with respect to the additions Horace

made to the trust after the engagement.
Secondly, the question arises whether the doctrine provides a sat-

isfactory remedy if Horace made the transfers while he was engaged to
Wanda. Under a constructive fraud approach in a jurisdiction that
recognizes dower, a court would probably invalidate the transfer of the

house at least to the extent of Wanda's dower rights. As previously
discussed, inchoate dower is considered a right that vests upon marriage. 115

If Wanda's interest in the corpus of the trust, absent a transfer, was

an expectancy during marriage, she could only invalidate the trust in a

jurisdiction that recognized marital rights in the expectation of inherit-

ance. 116 With respect to either the transfer of the house alone or both

the house and the personalty in trust, a court would presume fraud

absent any misrepresentation by Horace. Under a constructive fraud

theory, the existence of these marital rights would impose a duty on

Horace to disclose the dispositions to Wanda during their engagement.
This duty particularly existed when Horace transferred almost all of his
property even though his children were the beneficiaries. 117 A duty to
disclose makes sense from a moral viewpoint because it fosters honesty

between prospective spouses. Yet, is this duty legally tenable?

First, consider the situation in which Wanda knew that Horace
resided in the house and appeared to have some property interest in it.

Wanda also knew that Horace received income on a regular basis. Is
it reasonable to place on her the burden of ascertaining whether Horace

owned the house in fee or whether he received the income from a trust
rather than from an account titled in his name? The majority of courts

applying a constructive fraud test would probably not impose such a

burden on Wanda in the absence of any disclosure by Horace. Instead,
they would likely find that she justifiably relied on his apparent property

ownership. 118 This would seem to be the correct result because it avoids

the arguably undesirable result of requiring a prospective spouse to

115. See supra note 108 and accompanying text.

116. See supra note 109 and accompanying text.

117. See supra note 60 and accompanying text.

118. Courts frequently did not require a showing of actual reliance in the constructive

fraud area. See, e.g., Chandler v. Hollingsworth, 3 Del. Ch. 99 (1867).



32 INDIANA LAW REVIEW [Vol. 25:1

scrutinize the partner's property holdings in the absence of a prenuptial

agreement. This approach would encourage Horace, who made the trans-
fers, to avoid the application of the doctrine by giving notice to Wanda,
who would then be bound even absent a written waiver. 119

A more difficult case is presented if Wanda lacked knowledge of
the existence of the house and the trust and Horace had no plans of

using them as marital property, but intended to keep his retained interest

in them solely for his personal benefit. Although Wanda clearly could
not have relied on this property in marrying Horace, her ignorance is

not necessarily fatal to a claim for constructive fraud.

Interestingly, the court in Chandler v. Hollingsworth 120 was not

perturbed by a prospective spouse's lack of knowledge of the assets

transferred because she was still entitled to a property right in the real

estate upon marriage. 121 This reasoning is problematic. A person can
have a property right without knowledge of it. Defrauding a prospective

spouse of a future property right that may never become possessory,
and is really nothing more than an expectation, however, reveals a logical

weakness requiring some reliance. A better approach is to dispense with
the fiction of the existence of protectable rights during engagement and

the problem of reliance and recognize that Horace's retention of an

interest in or power over the property means that he has not cut the

strings connecting him to the property. Under this theory, which is based

on an estate tax analogy, 122 Horace's retention of a lifetime ownership

interest in the property gives Wanda a right to elect against these existing
interests, thereby avoiding the machinations associated with the doctrine.

Wanda would have a much more difficult time recovering in a
jurisdiction that requires actual fraud. First, she would have to show

that she owned a property interest during the engagement. This would

be particularly difficult in a jurisdiction like Ohio after Perlberg v.

Perlberg. 121 Second, after overcoming this hurdle, she would have to

prove that Horace transferred the property with an intent to disinherit

her. In this case, she would rely on Horace's transfer of virtually all

of his assets and his retention of a life estate and power over the

principal. Nevertheless, she would have to deal with the issue of whether

Horace's primary motive was disinheritance or a desire to benefit his

119. This assumes that the action would be brought in a jurisdiction that does not

require consent. See supra note 89.

120. 3 Del. Ch. 99 (1867).

121. Id. at 110-11.

122. See supra notes 21-22 and accompanying text.

123. 18 Ohio St. 2d 55, 247 N.E.2d 306 (1969) (in the absence of a right to dower

existing prior to marriage and a showing of actual fraud, nondisclosure of a transfer of

real property one day before marriage will not constitute constructive fraud).



1991] REDESIGNED ELECTIVE SHARE 33

children even though the latter incorporates an intent to diminish Wanda's
share. Lastly, Wanda would have to demonstrate that Horace misrep-
resented the title to the property and that she relied on that misrep-

resentation. Of course, Wanda would fail if she lacked knowledge of
the property's existence.

The actual fraud test is analytically more tenable than the constructive
fraud approach. 124 The disadvantage is that unless Horace misrepresents

his property interests, Wanda will be precluded from acquiring an interest
in his estate. This result allows Horace to disinherit Wanda rather easily
and neither balances the competing interests of the surviving spouse and

children from a prior marriage nor promotes the goals of an elective

share system. Next, it is necessary to examine statutory models and to

analyze whether they provide a better framework for resolving Wanda's

problems in the two alternatives posited: when Horace transfers his
property before he contemplates marriage and when he makes the con-
veyances during engagement.

IV. The Statutory Models

The vast majority of elective share statutes do not provide for a
right of election against testamentary substitutes created prior to marriage

or antenuptial transfers made in fraud of marital rights. These statutes
are silent as to whether the common-law doctrine has been statutorily
overruled or whether it co-exists with the statutory schemes. Several

states have addressed, explicitly or indirectly, the issue of the includibility

of transfers prior to marriage in the surviving spouse's elective share.

There are basically two approaches. One, exemplified by the Wisconsin

and Missouri statutes, codifies the common-law rule. 125 The other es-
tablishes objective criteria to determine when a transfer will be deemed
a testamentary substitute. The subjective approach embodied in the

Wisconsin statute will be considered first.

A. Wisconsin

The Wisconsin elective share statute grants the surviving spouse a
right of election against marital and deferred marital property owned
at death as well as transfers of property that are included in the augmented

marital property estate based on objective criteria. 126 In addition, section

124. See Bregy & Wilkinson, supra note 33, at 76.
125. Mo. Ann. Stat. § 474.150 (Vernon Supp. 1990); Wis. Stat. Ann. § 861.17(1)

(West 1991).

126. Wis. Stat. Ann. §§ 861.01-.07 (West 1991). Wisconsin's augmented estate

concept resembles the UPC model in that it includes retained interest transfers. Like the
redesigned UPC, it also "applies to life insurance, accident insurance, joint annuities,
pensions and other arrangements under which property is payable to a person other than

the surviving spouse or the estate of the decedent spouse." Id. § 861.05 comment. Pre-

1990 UPC § 2-202(1) excluded such arrangements when the beneficiary was not the spouse.



34 INDIANA LAW REVIEW [Vol. 25:1

861.17 of the Wisconsin code authorizes a surviving spouse to elect

against "property arrangement [s] in fraud of the rights of the surviving

spouse." 127 Such arrangements include "[a]ny transfer or acquisition of

property, regardless of the form or type of property rights involved,

made by the decedent during marriage or in anticipation of marriage

for the primary purpose of defeating the rights of the surviving spouse." 128

Unlike most elective share schemes, Wisconsin's statute, which is

based on the Uniform Marital Property Act, limits the right of election

to property acquired during marriage except to the extent the property

was transferred in fraud of the right of election either before or during

marriage. In such cases, the transferred property will be subject to the

right of election whether the decedent conveyed it outright or retained

an interest in it.

As originally adopted, section 861.17 provided for an exception to
the fraud rule if the decedent transferred property prior to or within

one year of marriage for the benefit of children from a prior marriage. 129

Historically, this exception to the common-law doctrine was recognized

by a minority of jurisdictions if the children's parents agreed that the

surviving parent would bequeath property generated by their marriage

to their children and the amount of property transferred to the children

was not disproportionately large. The repeal of this section, however,

does not mean that such transfers are necessarily fraudulent. Under
section 861.17(l)(a), the court has the discretion to determine whether

the "primary purpose" of the transfer was to disinherit the surviving

spouse or to provide for the children. Assuming that the main purpose

of the disposition was to confer a benefit on children from a prior

marriage, such an arrangement may be valid.
Of course, determining the decedent's primary purpose in making

the property disposition will present the same problems under the current

Wisconsin statute as existed at common law. Although the legislative
committee that drafted the section recognized these difficulties and con-

sidered the objective approaches of New York and Pennsylvania, it

127. Wis. Stat. Ann. §861.17(1) (West 1991).
128. Id. § 861.17(l)(a) (emphasis added). Chapter 852 of the Wisconsin statute deals

with intestacy. Chapter 861 relates to the forced share.

129. Section 861.17(2) originally provided: "An arrangement made before marriage,
or within one year after marriage, or prior to April 1, 1971, to provide for issue by a

prior marriage is not a fraudulent property arrangement within the meaning of this section."

This subsection was repealed in 1985. The comment to this section merely indicates that

"[b]ecause persons now married may have intended to provide for issue by a prior
marriage, they are able to do so within a year after the effective date of this Code without

danger of having such arrangements challenged as a fraud on the rights of the spouse."

Id. comment.



1991] REDESIGNED ELECTIVE SHARE 35

decided to recommend a codification of the common-law approach that
"has the advantage of being familiar." 130

A justification based on familiarity is questionable particularly be-
cause, commencing with its frequently cited decision of Sederlund v.

Sederlund131 in 1922, the Wisconsin Supreme Court has apparently never

invalidated a prenuptial transfer of property. The actual protection af-

130. The legislature reviewed and specifically rejected the approach used in New
York and Pennsylvania. State of Wisconsin Senate Bill 5, at 162 (1969). The legislative

history also indicates that the section's "interest is to fortify [the] judicial doctrine and

give it procedural shape" particularly "in light of the abolition of inchoate dower by

861.03." Id. Thus, the section would reach "deliberate plans to deplete the probate estate

in order to defeat election by the surviving spouse" regardless of whether the transfer

was of real or personal property. Id.

A report of the Wisconsin Bar Association explained the purpose of the proposed
statute:

The third preliminary draft of Sec. 6 . . . was an attempt to preserve the existing

law regarding the right of the surviving spouse to reach various kinds of transfers

made by a decedent during lifetime in the extreme case where the transfer was
deliberately made to put the property out of reach of the spouse and any right

to elect.

Probate Code Committee, State Bar of Wisconsin, Real Property, Probate and
Trust Law Section Working Papers, at 170 (1962-66) [hereinafter Wisconsin Bar
Report]. The Report criticized the decision in In re Estate of Mayer, 26 Wis. 2d 671,

133 N.W.2d 322 (1965), which reaffirmed that right, but indicated that the challenge must
be part of an exercise of the right of election, must make the property part of the estate
for all purposes, and must not merely be to reach the statutory share. Id. Section 6 was

redrafted to avoid requiring the widow to elect against the will in order to recover a
share of fraudulent transfers on the theory that the surviving spouse might not learn of

the fraud until after the time to file a notice of election expired. Id. at 181.

In its explanation of § 6, which applies to personalty and realty, the Wisconsin Bar

Report noted that although the Wisconsin common-law approach has been criticized by

legal scholars, the "present flexible test seems to have worked satisfactorily to reach the

exceptional cases where one spouse has sought deliberately to defeat the rights of the

other by transferring personalty during lifetime." Id. at 179. The types of transactions

were intentionally not enumerated. This conclusion is subject to question because, as the

Report noted, "case law is extremely meager." Id. at 192. No Wisconsin case was found
in which a surviving spouse was successful in invalidating a transfer in whole or in part

as fraudulent. The burden of proving fraud in all cases is on the surviving spouse. The

new section also gives the court discretion to "reduce or eliminate any share for the

survivor if the decedent had reason to disinherit the surviving spouse, as where the couple

have separated." Wisconsin Senate Bill 5, at 147 (1969).

The State Bar of Wisconsin recommended that "[t]he court's power to provide for

the deserving spouse . . . should extend to any assets transferred gratuitously by the

husband during lifetime . . . under circumstances which would include such assets within

the taxable estate for federal estate tax purposes." Wisconsin Bar Report, supra, at
106. This recommendation was not accepted.

131. 176 Wis. 627, 187 N.W. 750 (1922) (upholding the transfer of real estate to
the children of a first marriage made before the husband met his second wife). See also
Wisconsin Senate Bill 5, at 147 (1969).



36 INDIANA LAW REVIEW [Vol. 25:1

forded to a surviving spouse in view of the legislative adoption of this

judicial doctrine seems more theoretical than real. Furthermore, the

adoption of a subjective fraud doctrine to determine the validity of

antenuptial conveyances appears to contradict the objective approach 132

adopted by the Wisconsin legislature in deciding whether post-marriage

testamentary substitutes are includible in the augmented estate. 133

Application of the Wisconsin statute to Case 1 would result in the

excludibility of the transferred property from the augmented estate.

Horace did not create the testamentary substitutes in Case 1 for the

primary purpose of defeating Wanda's marital rights. Indeed, he was
not contemplating marriage at the time of the transfer. He was motivated
by a desire to benefit his children. Accordingly, Wanda would have no
claim against the transferred property despite Horace's retention, during

their marriage, of a life estate and a power to dispose of the transferred

property until his death. If the transfers were made during marriage,
the property would have been included in the augmented estate to the

extent it constituted marital or deferred marital property. If, however,

Horace made the transfers after his engagement to Wanda without notice
to her, a court would have to resolve the difficult question of whether

Horace's primary motivation was to disinherit Wanda or to provide for
his children. Certainly, any argument by Horace that the substantial

post-engagement transfers to his children were not made for the primary
purpose of defeating Wanda's rights as a surviving spouse is disingenuous.

B. The Objective Models

The appropriate treatment of Horace's premarriage transfers will

now be examined in the context of elective share statutes adopting
objective criteria.

1. Pennsylvania.—The Pennsylvania statute formulates an objective
standard for including a conveyance of property in the augmented estate.

On its face, section 2203 ignores whether the transfer occurred before
or during marriage, only with respect to "[p]roperty conveyed by the

decedent during his lifetime to the extent that the decedent at the time

of his death had a power to revoke the conveyance or to consume,

invade or dispose of the principal for his own benefit." 134 The other

132. Some would argue that while an objective approach is more appropriate for
marital transfers, a subjective approach is desirable for antenuptial conveyances. This

rationale suggests that only those transfers made with an intent to disinherit and without
notice to the intended spouse should be subject to the right of election. The author rejects

this view. See infra text accompanying notes 256-60.

133. Wis. Stat. Ann. §861.05 (West 1991).
134. 20 Pa. Cons. Stat. Ann. § 2203(a)(3) (Purdon Supp. 1991).



1991] REDESIGNED ELECTIVE SHARE 37

categories of testamentary substitutes include retained life interests, joint

tenancies, annuities, and transfers in contemplation of death that were

created during marriage. 135

Why does the Pennsylvania statute seem to treat property conveyed
subject to a power to revoke or consume, invade or dispose of the

principal more inclusively? Neither the statute itself nor the official

comment is illuminating. The comment merely indicates that section 2203
was influenced by the UPC. 136 The pre- 1990 UPC, however, pointed to
section 2203's predecessor, section 11 of the Pennsylvania Estates Act 137

as a model. 138 The influence of the pre- 1990 UPC helps to explain why
the other categories of testamentary substitutes are limited to post-

marriage transfers. 139 Nevertheless, the comment to section 2203 does
not expressly adopt the UPC's rationale for excluding premarital transfers
from the right of election. 140 Furthermore, the pre- 1990 UPC included
transfers of property subject to a power to revoke or invade, or dispose

of the principal in the augmented estate only if made during marriage.
The answer appears to lie in the fact that section 2203(a)(3) is the

direct successor to section ll, 141 while the other subsections of the

135. Id. § 2203(a)(2), (4)-(6).

136. Id. § 2203 comment.

137. 20 Pa. Cons. Stat. Ann. § 2203(a)(2)-(6) was originally enacted in 1947 as

§ 11 of the Estates Act and was adopted in 1978 as the successor to 20 Pa. Stat. Ann.

§6111 and 20 Pa. Stat. Ann. § 301.11(a).
138. U.P.C. § 2-202 comment (1983).
139. U.P.C. § 2-202(1) included only testamentary substitutes created during marriage

in the augmented estate. See infra note 218 and accompanying text.

140. See 20 Pa. Cons. Stat. Ann. § 2203 comment (Purdon Supp. 1991).
141. Section 11 of the Estates Act provided in pertinent part:

A conveyance of assets by a person who retains a power of appointment by
will, or a power of revocation or consumption over the principal thereof, shall

at the election of his surviving spouse, be treated as a testamentary disposition

so far as the surviving spouse is concerned to the extent to which the power

has been reserved.

20 Pa. Cons. Stat. § 301.11 (Supp. 1971). Parenthetically, § 2203(a)(3) is more limited

than § 11 because it does not "include property which the decedent has given away

absolutely and cannot recapture for his own benefit, even though he has retained a power
of appointment which cannot be exercised in his favor during his life." 20 Pa. Cons.

Stat. § 2203 (Purdon Supp. 1991) (quoting Official Comment 1978). See In re Estate of
Behan, 399 Pa. 314, 160 A.2d 209 (1960) (property subject to the decedent's special power

of appointment is includible in the net estate when the decedent is also the donor of the
power). Furthermore, unlike § 11, § 2203(a)(3) explicitly requires that the decedent's

retained power be exercisable for the decedent's benefit. The words "power of consumption"
in § 11, however, have been interpreted to mean a power to consume for the decedent's
benefit. See In re Estate of Schwartz, 449 Pa. 112, 116, 295 A.2d 600, 603 (1972) (plurality

opinion) (indicating that prior decisions under § 11 "involved situations where the interest

retained by the decedent could be exercised to his own advantage"); Longacre v. Hornblower



38 INDIANA LAW REVIEW [Vol. 25:1

Pennsylvania statute were added later, apparently in response to the

UPC. 142 When adopted, section 11 did not expressly exclude antenuptial
transfers from the forced share on the theory that the critical factor in

including transfers of property in the augmented estate is the nature of

the decedent's power over the property and not the time of transfer.

According to Professor Bregy, a leading commentator on and drafter

of the Pennsylvania Estates Act, the legislature was advised to focus

on the extent to which a decedent retained attributes of ownership over

the transferred property at death and not the donor's intent in making

the transfer. 143

& Weeks, 83 Pa. D. & C. 259, 262 (1952) (stating that "the legislature was using the
word 'consumption' according to its common meaning, and intended to apply the act to
all conveyances of assets subject to a power in the transferor to reacquire beneficially

the property conveyed").

Minnesota, until recently, had a statute that appeared to have been modeled on §
11 of the Pennsylvania statute. See Minn. Stat. § 525.213 (1969). Without limiting its

coverage to transfers during marriage, the elective share statute included transfers of

property pursuant to which the decedent retained a testamentary power of appointment

or a power of disposition or consumption at death. Thus, the time of the transfer and

the intent with which it was made should have been irrelevant with respect to the includibility

of the transfer. See Note, The Minnesota Legislature, 1969 Regular Session, 54 Minn.

L. Rev. 1029, 1033 (1969) (concluding that under the Minnesota statute, the decedent's

control over the property at death is determinative). Unlike § 11, which was interpreted

to include joint tenancies, the Minnesota statute was held to exclude such dispositions of

property. In re Estate of O'Brien, No. C7-87-1718 (Minn. Ct. App., Jan. 5, 1988).

However, the court's reasoning appears to be questionable. First, the court stated that a

joint tenancy was not a testamentary power of appointment, but did not discuss whether

it was subject to a power of consumption or disposition. Cf. O'Connell Estate, 16 Pa.

Fiduc. Rep. 491, 493 (Orphan's Ct. 1966) (holding that a joint tenancy with right of

survivorship created prior to, but not in contemplation of marriage was subject to a right

of election because "it was entirely within the [husband's] power . . . during his lifetime

to consume his undivided one-third interest, including his right of survivorship"). Second,

the court seemed to be influenced by the particular facts, rather than a proper analysis

of the statutory language. In O'Brien, the decedent husband and the surviving spouse,

although not legally separated, maintained separate residences for 15 years and made

separate property arrangements. All of the husband's property was in joint tenancies with

his daughters and sister with whom he had close relationships; they had frequently played
the role of care-givers. In addition, the widow had sufficient independent means. Thus,

in the absence of policy reasons supporting the right of election, the court found that

their post-wedding joint tenancies were justifiable property dispositions.

The repeal of § 525.213 in 1985 was effective for estates of decedents dying after

December 31, 1986. This section was replaced by provisions modeled on the UPC. See
Minn. Stat. Ann. § 524.2-201 (West Supp. 1991). Thus, joint tenancies, like other

testamentary substitutes, are subject to the right of election only if they are created during

marriage. Id. § 524.2-202(l)(iii).

142. See 20 Pa. Cons. Stat. Ann. § 2203 comment (Purdon Supp. 1991).

143. See B. Bregy, Pennsylvania Intestate, Wills and Estates Act of 1947
5867 (1949). Bregy, who played a significant role in drafting the Estates Act, concluded



1991] REDESIGNED ELECTIVE SHARE 39

Consistent with this commentary, the lower courts in Pennsylvania

interpreted section 11 to apply to all conveyances subject to retained

powers, regardless of whether they were made before or during marriage.
This construction was based on the statutory language that did "not

limit itself to the conveyances made by a married person." 144 For the
most part, the cases decided under section 11 ignored the fraud on

marital rights decisions. Therefore, under these cases, it was immaterial

whether the conveyance was made prior to the engagement or even before
the couple met. Instead, the courts focused on the decedent's retention

of a power of consumption over the assets transferred until death and

not on any actual fraud committed against the surviving spouse.

The lower court decisions appear to have reached the correct result

both in their interpretation of section 11 and in their failure to rely on

the doctrine of antenuptial transfers in fraud of marital rights. As the

court in Blair Estate145 indicated, section 11 applied to "a person," not

to a married person. In addition, it did not require that the transfer

occur during marriage. The omission of the words "married" or "during

marriage" should be material in an elective share statute that defines

the parameters of a right of election. 146

Such an interpretation also accords with the policy behind the statute.

To the extent that the goal of the legislature was to include conveyances
of property in the augmented estate if the decedent retained a power

to revoke the disposition or consume the principal (i.e., retained economic

control over the property), then the time the decedent made the disposition
is immaterial. In essence, retention of this kind of control over the

that "an antenuptial transfer could be attacked under the present provision, and it probably

would make no difference how long before the marriage the transfer was made." Id. But

cf. Smigell v. Brod, 366 Pa. 612, 79 A.2d 411 (1951) (where the decedent conveyed real

property subject to a retained life estate prior to an engagement to marry, the transferred

property was not subject to the surviving spouse's share).

144. Blair Estate, 42 Pa. D. & C.2d 223, 228 (1967). In Blair, the court subjected
funds included in a pension plan to the wife's right of election because the decedent

contributed the funds prior to their marriage. The court held that the decedent retained

a power of consumption over the contributions to the pension fund up to his death "even

though it would require that he terminate his employment to do so." Id. at 227. Although

the court did not refer to the federal estate tax cases, the same argument was used to

include retirement benefits in the decedent's estate under Internal Revenue Code § 2038.

See Estate of Tully, 528 F.2d 1401 (Ct. CI. 1976).

145. 42 Pa. D. & C.2d 223 (1967).
146. See Mo. Ann. Stat. § 474.150(2) (Vernon Supp. 1990) ("Any conveyance of

real estate made by a married person ... is deemed to be in fraud of the marital rights
of his spouse"); N.Y. Est. Powers & Trusts Law § 5-1. 1(b)(1) (McKinney 1981) (including
as testamentary substitutes those dispositions "effected . . . after the date of the marriage");

20 Pa. Stat. Ann § 2203(a)(2) (Purdon Supp. 1991) ("Income ... of property conveyed
by the decedent during the marriage" subject to right of election).



40 INDIANA LAW REVIEW [Vol. 25:1
\_

property is tantamount to property ownership; therefore, any conveyance

by the decedent that involves the retention of control over the principal

at the time of death and that removes property from the probate estate

should be a fraud on the marital rights of the surviving spouse in the

objective sense.

Because the theory behind section 11 was to treat assets that the

decedent was able to dispose of or enjoy during marriage the same as

property that was titled in the decedent's name, both types of conveyances

should be subject to the elective right. Consequently, under section 11,

testamentary substitutes were presumptively fraudulent and could be

reached by the surviving spouse without requiring proof of actual fraud

by the decedent. In the absence of an actual fraud requirement, the

timing of the conveyance was immaterial. This fact was recognized by

the lower courts, but not by the Pennsylvania Supreme Court in Estate

of Kotz."
1

If not for Estate of Kotz, this analysis would apply with equal force

to the interpretation of "[p]roperty conveyed by the decedent during

his lifetime" under section 2203(a)(3). Despite the absence of language

in section 11 restricting its applicability to conveyances during marriage,

the Pennsylvania Supreme Court in 1979 limited the application of section

6111, the successor to section 11 and the predecessor of section 2203,

to "conveyances during marriage." 148 In reaching its decision, the court

was influenced by the heading of section 6111: "Conveyances to Defeat

Marital Rights." The court interpreted this section to exclude premarital

conveyances. This interpretation has no support in the legislative history

of either section 11 or section 6111. As Bregy indicated, section 11
reached antenuptial transfers of property that otherwise met the re-

quirements of the statute. 149 Furthermore, it ignored the possibility that

certain prenuptial transfers are made to defeat marital rights.
Nevertheless, in view of the gloss imposed by the Pennsylvania

Supreme Court's decision in Estate of Kotz, it is reasonable to ask

whether a similar interpretation would be placed on section 2203(a)(3),

which was enacted in 1978, prior to the Kotz decision. 150 If the legislature

wanted to limit testamentary substitutes to those created during marriage,

it would have used identical language for subsections 2203(a)(2) to

147. 486 Pa. 444, 406 A.2d 524 (1979).

148. Id. at 451, 406 A.2d at 531 (joint tenancy with a right of survivorship created

eight years before marriage is not subject to the right of election).

149. B. Bregy, supra note 143, at 5867.

150. As Justice Roberts pointed out in his concurrence, § 2203(a)(4) applies to joint

tenancies with a right of survivorship created by the decedent after marriage and therefore,

Kotz would have been decided the same way under the current statute. Kotz, 486 Pa. at

459, 406 A.2d at 532.



1991] REDESIGNED ELECTIVE SHARE 41

2203(a)(6), particularly in view of the more expansive interpretation of

section 11 by Bregy and several lower court decisions. 151 On the other
hand, the legislature has not amended the statute since Estate of Kotz,
which may indicate its agreement with the decision.

Given the legislature's rejection of the intent test and its reliance

on objective criteria to evaluate inter vivos transfers, an expansive in-

terpretation of section 11, as opposed to the limited reading by Estate

of Kotz, seems preferable and more consistent with the goals of Penn-

sylvania's elective share statute. In fact, the legislature should reconsider

section 2203 's inclusion of other testamentary substitutes in the augmented

estate only if created during marriage. Certainly, a decedent retains no

greater power over a revocable trust or property transferred subject to

a retained power to invade the principal than over a joint tenancy with

a right of survivorship. In addition, the beneficial interest is not nec-

essarily greater when the decedent retains a power to invade the corpus
for his or her benefit rather than a life estate. In each case, the focus

should only be on the extent of the decedent's power over or interest

in the transferred property at death and not on whether the transfer

preceded or followed marriage. 152 This rationale applies with equal force

to gifts in contemplation of death. 153 Although the decedent's legitimate

estate and tax planning objectives should be safeguarded, an individual

should not be able to deplete the augmented estate by making large

antenuptial gifts even if death follows within a year of marriage. 154

151. B. Bregy, supra note 143, at 5867. See O'Connell Estate, 16 Pa. Fiduc. Rep.

491, 492-93 (1966) (where joint tenancy with a right of survivorship was created before

the marriage was contemplated and was not for the purpose of defrauding the widow,

the surviving spouse could elect against the property under § 11 because the decedent had

a lifetime power to consume his interest); Clephane Trust, 36 Pa. D. & C.2d 386 (1965)
(allowing a right of election against a revocable trust created more than two years before

the marriage and without intent to defraud later wife); Hagy Estate, 15 Pa. Fiduc. Rep.

456, 461 (1964).

152. The only relevance that a premarriage transfer should have is if policy dictates

that the surviving spouse receive a lesser fraction of the augmented estate; in that event,

the fraction should relate to the length of the marriage and not the time the testamentary

substitute was created. Cf. Langbein & Waggoner, supra note 1 (advocating adjustments
to the forced share based on duration of marriage). Another relevant factor might be

whether the decedent had children from a prior marriage.

153. 20 Pa. Cons. Stat. Ann. § 2203(a)(6) (Purdon Supp. 1991).

154. Because § 2203(a)(6) only captures gifts made within one year of death and
then only if "the aggregate amount so conveyed to each donee exceeds $3,000," if it

applied to antenuptial transfers, the marriage could only have lasted less than one year.

Id. In cases of such a short marriage, some have argued that it is inequitable to give

the surviving spouse the same portion of the decedent's estate as the survivor would have

been entitled to had the marriage lasted 30 years. See, e.g., Langbein & Waggoner, supra
note 1, at 314-21 & n.8. This objection can best be dealt with, if it should be at all, by
adjusting the fractional share rather than excluding premarriage transfers. See U.P.C. § 2-

201(a) (Supp. 1991).



42 INDIANA LAW REVIEW [Vol. 25:1

The other rationale for excluding antenuptial transfers from the

augmented estate, that is, preserving dispositions of property for the

benefit of children from a prior marriage, 155 does not support the dis-

tinction made by the Pennsylvania statute if the limitation in Estate of
Kotz does not apply to section 2203(a)(3). No logical reason exists to
suppose that a parent will be less likely to use a retained power to

benefit a child rather than a life estate or joint tenancy. 156

More troubling is the silence in the legislative history of section 11
and its successors concerning the interplay, if any, between the elective

share statute and the transfer in fraud of marital rights doctrine. 157

Assuming that section 2203(a)(3) applies to prenuptial transfers, con-

veyances subject to retained powers of revocation or invasion for the

decedent's benefit should no longer be subject to the doctrine because

this section makes the existence of fraud irrelevant to the includibility

of the transferred property in the augmented estate. Conveyances covered

by section 2203(a)(2), (4), (5), and (6) would still be subject to the

common-law doctrine. 158 Of course, the doctrine presumably applies to
outright conveyances in which the decedent retained no interests or powers

exercisable for his or her own benefit. These transfers are not testamentary
substitutes even if created during marriage.

The cases decided subsequent to the adoption of section 1 1 involving

the antenuptial transfer in fraud of marital rights doctrine shed no light

155. See, e.g., U.P.C. § 2-202 comment (1983). But see Wis. Stat. Ann. § 861.17(2)

(repealed 1985). There is, however, no evidence that in Pennsylvania, antenuptial transfers

in fraud of marriage for the benefit of a child were not subject to attack. This exception

was originally enunciated in the English cases. See supra note 80.

156. This author's review indicates, however, that a majority of cases dealing with

transfers in fraud of marriage involved retained life interests. This should not be deter-

minative because most of the cases dealt with transfers of land in fraud of dower where

the most common type of retained interest would probably be a life estate or a joint
tenancy.

157. See, e.g., O'Connell Estate, 16 Pa. Fiduc. Rep. 491 (Orphan's Ct. 1966). The

court found that a joint tenancy with right of survivorship held by the decedent with his

sisters was subject to the widow's right of election pursuant to § 11 despite its creation

prior to marriage and merely noted that "[t]here is no claim that the deed was made for

the purpose of defrauding the rights of the widow ... or that the decedent had any

intention of marriage at the time the deed was executed." Id. at 492-93. The court seemed

to assume that because the deed was not executed in contemplation of marriage, it was

valid. The court neglected to indicate, however, that as the doctrine was applied in

Pennsylvania, it only invalidated a transfer to the extent of the surviving spouse's rights

in the property. Thus, assuming the requirements of the doctrine of antenuptial transfers

in fraud of marital rights and § 11 were met, the results should not have been different.

158. Commencing with Kirk v. Kirk, the Pennsylvania Supreme Court, in imposing
an actual fraud requirement, took a more stringent view of the requirements necessary

to invalidate a transfer as a fraud on marital rights. For a discussion of the evolution

of this doctrine in Pennsylvania, see Bregy & Wilkinson, supra note 33.



1991] REDESIGNED ELECTIVE SHARE 43

on the relationship between this rule and the elective share statute. 159

They only demonstrate that the doctrine continues to be applied without

regard to the elective share statute. The surviving spouse, however, will

have greater difficulty proving fraud now than in the period preceding
the Pennsylvania Supreme Court's decision in Kirk v. Kirk, 160 which

imposed an actual fraud test.

2. New York.—A different approach is followed by New York's
Estates, Powers & Trusts Law (EPTL), 161 which explicitly includes in
the net estate only those testamentary substitutes created during mar-

riage.
162 Like the Pennsylvania statute and the UPC, 163 the EPTL adopts

objective criteria to determine the includibility of inter vivos transfers

in the elective share, but does not limit transfers subject to retained

powers to dispositions for the decedent's benefit. 164 The EPTL is silent
as to the treatment of antenuptial transfers made in fraud of marital
rights.

The legislative history of the EPTL is not helpful in determining
whether the common-law doctrine of antenuptial transfers in fraud of
marital rights survives the enactment of the objective standards adopted

in section 5-1. 1(b)(1). A legislative report of the Temporary State Com-
mission merely notes that section 18-a (enacted as EPTL section 5-1.1)

159. See, e.g., Brinko v. Redden, 402 Pa. 408, 167 A.2d 467 (1961) (where a

decedent transferred real property apparently reserving a life estate during his first marriage

and two years before his second marriage, the conveyance was not in fraud of the second

wife's marital rights); Smigell v. Brod, 366 Pa. 612, 79 A.2d 411 (1951) (enunciating the

rule that when a husband transferred property subject to a retained life estate prior to

engagement, the surviving spouse could not acquire an equitable interest in the property

and therefore, could not set aside the conveyance as fraudulent); Durant v. Durant, 294

Pa. Super. 202, 439 A.2d 821 (1982) (upholding the decedent's transfer of a tavern to

his brother six months prior to marriage because the wife could not sustain the burden

of proof that she knew of and relied on her husband's possession of property, the husband

received $10,000, and the transfer may have occurred prior to the engagement). Cf.
Andrikanics v. Andrikanics, 371 Pa. 222, 223, 89 A.2d 792, 793 (1952) (where a wife

challenged her husband's transfer of property to the children of his first marriage two

weeks before the marriage on the ground of undue influence, the court, in upholding the

transfer, stated that "[a] question might be raised as to whether . . . the wife-plaintiff

has the status in this proceeding to demand relief inasmuch as she was not married to
the husband-plaintiff at the time the conveyance in question was made"). The Andrikanics

court's reliance on Smigell appears to be misplaced because Smigell, like Brinko, involved

a transfer prior to the engagement.

160. 340 Pa. 203, 16 A.2d 47 (1940). It should be noted that Kirk v. Kirk was

decided seven years before the adoption of § 11. For further discussion of this case, see

supra note 112.

161. N.Y. Est. Powers & Trusts Law § 5- 1.1 (b)(1) (McKinney 1981).
162. Id.

163. U.P.C. § 2-202(b)(2) (Supp. 1991).

164. N.Y. Est. Powers & Trust Law § 5-1. 1(b)(1) (McKinney 1981).



44 INDIANA LAW REVIEW [Vol. 25:1

applies to "[o]nly such transactions effected by the decedent after the

marriage and after the effective date of the bill." 165 The Commission

enumerated * 'areas of related subjects which are not covered herein but

which could be profitably studied" 166 and asked whether "the present

law with respect to transfers made between the engagement and the
marriage [should] be changed." 167 This question was never answered and

it leaves open the possibility that a subjective test incorporating the

common-law doctrine may be applied to testamentary substitutes created
during the engagement period. The vehement rejection by the Bennett

Commission, which drafted section 5-1.1 and the legislative reports, of

applying a subjective test to testamentary substitutes created during

marriage casts doubt on the doctrine's continued viability. 168 This is

particularly true with respect to outright transfers. 169 In addition, the

report's query assumes that transfers made prior to an engagement will
be excluded from the right of election. Most troublesome is the implicit

assumption that testamentary substitutes created prior to marriage should

be regarded differently for elective share purposes than assets that are

acquired before marriage and titled in the decedent's name at death.
The reports accompanying the EPTL give no rationale for this dis-
tinction.

170

165. Third Report, supra note 54, at 24.

166. Id. at 118.

167. Id. at 118-19 n. 14(e) (citing W. Macdonald, supra note 33, at 354 app. C);
Vaughan, supra note 33, at 178.

168. In a note to the proposed statute, the Report indicates that the "act ... is

intended to provide a comprehensive statement as to the rights of a surviving spouse with

respect to inter vivos transactions made by the decedent, as well as property disposed of

by will." Third Report, supra note 54, at 116.

169. Id. at 138 ("It is submitted that to protect freedom of alienation of property

every outright and absolute transaction should be immune from the attack of the surviving

spouse even if it is gratuitous.").

170. In 1985, a proposed amendment to EPTL § 5-1. 1(b)(1) included testamentary
substitutes created prior to marriage in the net estate. The report, in support of the

proposal introduced as Senate Bill No. 5058, explained that the appropriate test for

inclusion as a testamentary substitute is revocability, not whether it is created before or

during marriage. See Legislature of New York, Memorandum of the Law Revision
Commission Relating to the Right of Election of a Surviving Spouse, Legis. Doc.

No. 65[DJ, at 2 (1985); Legislature of New York, Recommendation of the Law
Revision Commission to the 1985 Legislature Relating to the Right of Election of

a Surviving Spouse, at 3 (1985). This amendment was never adopted by the legislature.

Last year, a proposal and memorandum in support of the proposal submitted by the
Trusts and Estates Section of the New York State Bar Association recommended changes
in EPTL § 5-1.1 that generally broadened the rights of the surviving spouse. See N.Y.
Bar Report, supra note 1. These changes, however, did not include subjecting premarriage
testamentary substitutes to the right of election. Most recently, the Advisory Committee

Report made broad recommendations to revise both the New York elective share and



1991] REDESIGNED ELECTIVE SHARE 45

The few cases involving premarriage transfers decided after the

enactment of EPTL section 5-1.1 171 shed no light on the continued
viability of the doctrine of antenuptial transfers in fraud of marital

rights.
172 In re Schemer™ is a recent example. In Scheiner, the decedent,

prior to marriage, purchased Treasury bills registered in the names of

the decedent and his sister, payable to the survivor. The court held that

the surviving spouse could not elect against the Treasury bills, even

though they rolled over during marriage, because the decedent purchased

them before marriage. 174 The court did not discuss whether the decedent

purchased them in contemplation of marriage, but applied a mechanical

test to determine whether the inter vivos transfers met the requirements

of a testamentary substitute. 175

The paucity of cases in the post-EPTL section 5-1.1 era is surprising

in light of the comparatively large number of cases that applied the

doctrine to premarriage transfers made before the effective date of the
act. This is particularly striking in light of New York's liberal inter-
pretation of the doctrine covering premarriage transfers of personalty

as well as real estate. To the extent that section 5-1.1 restricts a spouse's

intestacy statutes. Among its recommendations regarding the elective share was a proposal
to include as testamentary substitutes: (a) insurance policies on the decedent's life if the

decedent retained any incidents of ownership or transferred them within one year of death;

(b) pension, profit sharing, and deferred compensation plans and IRAs; (c) United States

government bonds payable on the decedent's death to a third party; (d) dispositions made

during marriage subject to retained life interests; (e) revocable transfers; (f) general lifetime

powers of appointment; and (g) certain inter vivos transfers made within one year of

death that exceed the gift tax exclusion under I.R.C. § 2503(b) and (e) to the extent that

the "decedent did not receive full and adequate consideration in money or money's worth

for such transfers." Advisory Committee Report, supra note 1, at 15-16 & app. C. The
Report rejected modeling the elective share statute on either the community property or

the equitable distribution models. Id. at 8-9.

171. EPTL § 5-1.1 became effective in 1967 and applied to testamentary substitutes
created on or after September 1, 1966 if the decedent and the surviving spouse were

married prior to their establishment and the decedent executed a will or died intestate on

or after that date. N.Y. Est. Powers & Trusts Law § 5-1.1 app. (McKinney 1981).
172. At least one commentator appears to assume that the doctrine is still valid.

See Note, EPTL § 5-1.1; Buy and Sell Agreement Directing Payment to Third Party Upon
Death of Testator Held a Testamentary Substitute, 58 St. John's L. Rev. 219, 223 n.166

(1983) (indicating that a transfer of realty while engaged would be void to the extent of

a widow's dower rights).

173. 141 Misc. 2d 1037, 535 N.Y.S.2d 920 (1988). For a commentary on Scheiner,

see Gibbs & Ordover, Right of Election by Surviving Spouse, N.Y.L.J., Sept. 13, 1989,
at 3, col. 4.

174. Scheiner, 141 Misc. 2d at 1038, 535 N.Y.S.2d at 921. The surrogate determined

that Treasury bills could never be testamentary substitutes because of the exemption in

EPTL § 5- 1.1 (b)(2)(C) excluding "United States savings bonds payable to a designated
person." Id.

175. Cf Estate of Walton, 56 A.D.2d 436, 392 N.Y.S.2d 621 (1977).



46 INDIANA LAW REVIEW [Vol. 25:1

ability to challenge prenuptial conveyances of property, this result is

undesirable.

LeStrange v. LeStrange176 crystallized the inherent dangers to a spouse

in a multiple marriage society in which the surviving spouse's interest

may be completely sacrificed to the legitimate interests of children from
a prior marriage. 177 LeStrange involved a husband and wife who married
late in life and had children from prior marriages. After their engagement,

Mr. LeStrange represented to his fiancee that he owned real property

and a substantial sum of money. At the urging of his children, and
without informing his prospective wife, he transferred all of his property

to a trust approximately six weeks before his marriage. The trust directed

Mr. LeStrange, as trustee, to pay himself the income for life with the

remainder to be divided among his children. The trustee had the power
to withdraw the principal only with the consent of his sons. 178 The court

stated that the "transfers were made in contemplation of the marriage

176. 242 A.D. 74, 273 N.Y.S. 21 (1934). Prior to the LeStrange decision, the doctrine

was apparently only applied to antenuptial conveyances of real property.

177. Protecting the interests of children in a multiple marriage society is a central

concern of the redesigned elective share provisions of the UPC. See U.P.C. art. II, pt.
2 general comment (Supp. 1991); Waggoner, Spousal Probate Rights, supra note 1. Securing

the children's interest is accomplished at the surviving spouse's expense when accom-

modation of both parties' interests is possible.

178. Assuming that this trust was created during marriage and after the effective

date of EPTL § 5-1.1, it arguably would not have been considered a testamentary substitute.
Reservation of a life estate under the EPTL (unlike the Pennsylvania statute or the UPC)
does not render either the life estate or the underlying transfer includible in the net estate.

See N.Y. Est. Powers & Trusts Law § 5-1. 1(b)(1) (McKinney 1981). But see supra note
170 (recommendation of the Advisory Committee Report). Generally, a power granted by

the express provisions of the instrument to invade the principal held by the decedent at

death in conjunction with another person results in the includibility of the principal to

the extent of the power in the net estate. In this situation, the husband held that power

with the beneficiaries. See LeStrange, 242 A.D. at 75, 273 N.Y.S. at 23. In such a case,

the trust was terminable and therefore invadable as a matter of law (under EPTL § 7-
1.9(a) (McKinney 1967)), not by virtue of the "express provisions of the disposing in-

strument." N.Y. Est. Powers & Trusts Law § 5-1. 1(b)(1)(E). The Report makes clear
that a power of the decedent to terminate in conjunction with the beneficiaries is not a

power within the elective share provision. See Third Report, supra note 54, at 130;

Kwestel & Seplowitz, supra note 1, at 18. But see In re Estate of Riefberg, 58 N.Y.2d
134, 446 N.E.2d 424, 459 N.Y.S.2d 739 (1983) (finding a power to revoke under § 5-

1.1(b)(1)(E) where a contract provided that it could be terminated upon the mutual

agreement of the parties). A conclusion that the LeStrange trust would not be a testamentary
substitute even if created during marriage would point to a serious deficiency in the New
York statute. This deficiency could be remedied easily by amending the statute to provide

that a transfer with a retained life estate constitutes a testamentary substitute or by

eliminating the distinction between a power to revoke or terminate retained by the express

provisions of the disposing instrument and such power arising by operation of law. See

Kwestel & Seplowitz, supra note 1, at 24-27, 60.



1991] REDESIGNED ELECTIVE SHARE 47

and with intent to defraud the plaintiff and deprive her of her prospective

rights as a surviving spouse" 179 without notice to her and held the

transfers void under the following rule:

A man cannot deliberately, by his own purpose or through the
inducement of other interested persons, strip himself of all in-

heritable property in fraud of his prospective wife, to whom he
has represented that he has sufficient property for their com-

fortable support and maintenance and in which she will be entitled

to share upon his decease. 180

Although the right to support and maintenance exists during mar-

riage, the court explicitly recognized an inheritance right which is a mere

expectancy until death. 181 Thus, to reach an equitable result, the court

essentially held that Mr. LeStrange defrauded his prospective wife of

an expectancy that would not ripen into a right until death. Application

of this rule, however, does not produce the most desirable result. If

Mr. LeStrange had created the trust prior to his engagement (the situation

in Case 1), the transfer would not have implicated the doctrine and

would have been valid. At her husband's death, Mrs. LeStrange would

be left with virtually no interest in his estate, although the children's

interests would be secure. 182 From a support and marital-sharing view-
point, this does not promote the goals of an elective share system. On
the other hand, giving the surviving spouse a right to elect against the

trust property by virtue of the reserved life estate and power to invade

the principal would recognize her support needs and her contribution

to the marriage. This would decrease, but certainly not eliminate, the

children's shares. In short, incorporating the doctrine of antenuptial

transfers in fraud of marital rights into the New York elective share
statute would not produce the most favorable result. 183

3. The Uniform Probate Code.

a. The marital partnership theory

The recent revisions of the UPC's elective share provisions embody
a view of marriage and spousal rights at death that is dramatically

179. LeStrange, 242 A.D. at 76, 273 N.Y.S. at 24.

180. Id. In LeStrange, unlike many of the constructive fraud cases, the decedent
engaged in actual misrepresentation with ensuing reliance by his prospective wife.

181. Lestrange v. Lestrange, 242 A.D. 74, 76, 273 N.Y.S. 23, 24 (1934). See also

Rubin v. Myrub Realty Co., 244 A.D. 541, 279 N.Y.S. 867 (1935).
182. This assumes that, as an older couple, significant assets were not accumulated

during marriage.

183. This is independent of all other problems associated with the doctrine.



48 INDIANA LAW REVIEW [Vol. 25:1

different from its predecessor. Redesigned Article II explicitly adopts

the "contemporary view of marriage . . . [as] an economic partner-

ship." 184 According to Professor Lawrence Waggoner, who was primarily
responsible for the reformulation of Article II, two rationales support

this view. As the UPC indicates, the sharing theory derives from "an
unspoken marital bargain under which the partners agree that each is

to enjoy a half interest in the fruits of the marriage, i.e., in the property

nominally acquired by and titled in the sole name of either partner
during the marriage (other than property acquired by gift or inherit-

ance)." 185 Pursuant to this theory, property produced before the creation

of the partnership or acquired gratuitously, and therefore not generated

with the other partner's support, is not part of the bargain and can be

disposed of freely. A decedent who disinherits a surviving spouse by
leaving marital property to third parties breaches the implied agreement

between the spouses, and the decedent's estate is subject to the survivor's

elective right.
186 A second theory incorporates a restitution concept. This

theory recognizes the surviving spouse's contribution to the marriage,

whether pecuniary or nonpecuniary, and compensates the survivor for

lost opportunities. 187

In a community property system, a marital-sharing theory results in

a fifty percent spousal ownership of the marital property produced at

any time during marriage. The UPC rejected this approach for admin-
istrative reasons and instead, implemented the accrual system proposed

by Professors Langbein and Waggoner. 188 This system bases the elective

share on the length of the marriage and assumes that the percentage

of marital property increases with the length of the marriage. 189 The

surviving spouse of a short-term marriage of one to two years receives

three percent of the decedent's property titled in the decedent's name,

184. U.P.C. § 2-202 art. II, pt. 2 general comment (Supp. 1991); Waggoner, Spousal

Probate Rights, supra note 1, at 349-51.

185. U.P.C. art. II, pt. 2 general comment (Supp. 1991). See M. Glendon, supra

note 17, at 131. This, of course, assumes that the parties did not enter into an antenuptial

agreement.

186. Waggoner, Spousal Probate Rights, supra note 1, at 349.

187. Id. at 349-350. See M. Glendon, supra note 17, at 131.
188. See Langbein & Waggoner, supra note 1, at 314-21.
189. The accrual system can be problematic. For instance, a surviving spouse who

has been married for less than a year, and who buys a lottery ticket with marital assets,
wins, puts the money in his or her own name and then dies, will be disadvantaged. The
Advisory Committee Report specifically rejected the accrual system. It found this feature

"undesirable" because it "essentially valued spousal rights by reference only to the length

of a marriage, ignoring both the source of the marital assets and the fact that even in

marriages of short duration a surviving spouse may have contributed substantially to the
acquisition of family assets." Advisory Committee Report, supra note 1, at 9.



1991] REDESIGNED ELECTIVE SHARE 49

augmented by certain testamentary substitutes. This share increases with

each year of marriage to a maximum of fifty percent of the property. 190

By the end of fifteen years, virtually all of the decedent's property, the

drafters of the UPC posit, will be generated by partnership efforts. 191
At the heart of the UPC's accrual system is the premise that only
property acquired by the marital partnership, absent some need of the

surviving spouse that would implicate the support mechanism, 192 should

be includible in the augmented estate. 193 Under this theory, property

acquired prior to marriage should not be subject to the right of election.

This approach reflects the concern for ease of administration and

predictability in probate matters. The accrual method seeks to avoid the

difficult problems frequently associated with equitable distribution and

community property systems. 194 For example, the accrual system elimi-

nates the need to trace the source of the assets to determine whether

they were acquired before or during the marriage or by gift or inher-

itance. 195 Thus, the difficulties encountered in a community property

jurisdiction or under an equitable distribution system differentiating

between marital and separate property are dispensed with "by applying

an ever-increasing percentage to the couple's combined assets without

regard to when or how those assets were acquired, rather than applying
a constant percentage (50%) to an ever-growing accumulation of as-

sets."
196 Another rationale for the accrual system, although not artic-

190. U.P.C. § 2-20 1(a) (Supp. 1991).

191. Id.

192. Id. § 2-20 1(b).

193. Id. art. II, pt. 2 general comment.

194. See Kwestel & Seplowitz, supra note 1, at 8 n.23; Waggoner, Spousal Probate
Rights, supra note 1, at 355-58. Professor Waggoner also notes that because a goal of

the redesigned UPC is to achieve uniform state probate laws, the UPC could not incorporate
the equitable distribution system that varies among the states. See J. Oldham, Divorce,
Separation and the Distribution of Property (1989). In its rejection of an equitable
distribution model, the Advisory Committee Report stated that the use of discretionary

factors and the difficulty of tracing assets are undesirable. Advisory Committee Report,

supra note 1, at 8-9.

195. U.P.C. art. II, pt. 2 general comment (Supp. 1991).
196. Id. The comment explains that the elective share percentage of the couple's

combined property is equated with 50% of their marital assets. It gives an example of a
marriage lasting between 10 and 11 years. Under § 2-201 (a), the elective share percentage is

30% and under § 2-207(a)(4), 30% of the couple's combined assets are equated with 50%
of the assets acquired during the marriage (other than by gift or inheritance). Section 2-207

specifies the procedure for satisfaction of the elective share and subsection (a)(4) provides:

(a) In a proceeding for an elective share, the following are applied first to

satisfy the elective-share amount and to reduce or eliminate any contributions

due from the decedent's probate estate and recipients of the decedent's reclaimable

estate: . . .



50 INDIANA LAW REVIEW [Vol. 25:1

ulated, is that the commitment to the marriage arguably increases with

its length. A surviving spouse of a longer marriage should receive a
greater percentage of the decedent's estate. Basing the fractional share

on a commitment theory seems to accord with the justifiable expectations

of the surviving spouse.

The augmented estate against which the elective share percentage is

applied also includes the value of the property owned by the surviving

spouse at the decedent's death and the value of the surviving spouse's

reclaimable estate. 197 The purpose of combining both spouses' estates is

to "implement a partnership or marital-sharing theory" 198 as well as to

ensure that the surviving spouse does not receive a windfall. Under the

pre-1990 UPC, the surviving spouse's property was included in the
augmented estate, but only to the extent that it was titled in the survivor's

name or in the form of testamentary substitutes and was derived from
the decedent. 199 Although the comment to redesigned section 2-202 does
not specify the rationale for the prior version,200 a reading of the pre-

1990 section and its comment indicates that the policy was to include
property given to the surviving spouse by the decedent during the latter 's

(4) Amounts included in the augmented estate under Section 2-202(b)(4)

up to the applicable percentage thereof. For the purposes of this subsection,

the "applicable percentage" is twice the elective-share percentage set forth in

the schedule in Section 2-201 (a) appropriate to the length of time the spouse

and the decedent were married to each other.

Id. § 2-207(a)(4).

197. Id. § 2-202(b)(4). This subsection includes:

The value of property owned by the surviving spouse at the decedent's death,

reduced by enforceable claims against that property or that spouse, plus the

value of amounts that would have been includible in the surviving spouse's

reclaimable estate had the spouse predeceased the decedent. But amounts that

would have been includible in the surviving spouse's reclaimable estate under

subsection (b)(2)(iii) are not valued as if he were deceased.

Subsection (b)(2)(iii) refers to the proceeds of insurance and retirement benefits other than

Social Security.

198. Id. § 2-202 comment. The Advisory Committee Report rejected the UPC's

distinction between assets acquired before marriage and assets acquired during marriage

and its inclusion of the surviving spouse's estate in the augmented estate. The Report

noted, however, that some members of the Committee were troubled by its position.

Advisory Committee Report, supra note 1, at 8.

199. U.P.C. § 2-202(2) (1983). Of course, the consequence of including lifetime
transfers to the surviving spouse is a reduction of the spouse's right of election because

these transfers are credited against the elective share.

200. The comment to the redesigned UPC notes that pre-1990 § 2-202(2) included
those assets of the surviving spouse derived from the surviving spouse "[u]nder a different

rationale, no longer appropriate under the redesigned system." U.P.C. § 2-202 comment

(Supp. 1991).



1991] REDESIGNED ELECTIVE SHARE 51

lifetime in the augmented estate. 201 Thus, the focus of the pre- 1990 UPC
was on the decedent's property. Its goal was not the sharing of marital

property at death, which can be effected by pooling the property of

both spouses regardless of its source, but rather on preventing the survivor

from realizing a windfall at the decedent's death by considering the

extent to which the decedent made provisions for the survivor during
life. In addition to implementing the marital partnership theory, this

feature of redesigned section 2-202 eliminates the need to trace the source

of the survivor's property which can be an extremely arduous task,

particularly in the case of a long marriage.202

b. Testamentary substitutes includible regardless of when created

Redesigned section 2-202 manifests an enhanced concern with pre-

venting spousal disinheritance by broadening the surviving spouse's right

of election against nonprobate transfers. For the first time, it extends

the right of election to certain nonprobate property transferred prior to

marriage or property over which the decedent acquired a power prior

to marriage and "owned in substance as well as in form."203 Three
categories of property fall within this group: (1) property subject to a

presently exercisable general power of appointment held by the decedent;

(2) property subject to the decedent's unilaterally severable right of

201. U.P.C. § 2-202(2) & comment (1983). The pre-1990 UPC included transferred
property in the augmented estate when the beneficiary was the surviving spouse. Property

derived from the decedent, whether from inter vivos gifts or insurance benefits paid at

death, was credited against the surviving spouse's right of election under pre-1990 UPC
§ 2-202(2) regardless of "whether the transfers [were] made before or after marriage."
Id. Although not explicitly articulated, the reason for including transfers prior to marriage

in the augmented estate when they benefit the surviving spouse appears to have been the

section's policy of protecting the surviving spouse while preventing the receipt of a windfall.

In all likelihood, most of these transfers to the surviving spouse probably occurred after

marriage; therefore, the distinction, from a practical viewpoint, may not have been
significant. The comment explained:

[T]hus if a husband has purchased a home in the wife's name and made systematic
gifts to the wife over many years, the home and accumulated wealth she owns
at his death as a result of such gifts ought to, and under this section do, reduce

her share of the augmented estate. . . . [I]t is obvious that this section will

operate in the long run to decrease substantially the number of elections. This

is . . . because the spouse can no longer elect in cases where substantial provision

is made by joint tenancy, life insurance, lifetime gifts, living trusts set up by
the decedent, and the other numerous nonprobate arrangements by which wealth

is today transferred.

Id. § 2-202 comment.

202. This advantage is explicitly recognized in the comment. U.P.C. § 2-202 comment

(Supp. 1991).

203. Id.



52 INDIANA LAW REVIEW [Vol. 25:1

survivorship; and (3) proceeds of insurance policies in which the decedent

retained certain incidents of ownership. 204

In the first category, property is includible in the reclaimable estate

as long as the decedent held the power alone immediately before death

or if not, released the power or exercised it in favor of anyone other

than the decedent or the decedent's estate, spouse, or surviving spouse

while married to the surviving spouse and within two years of death. 205

The property is includible regardless of whether the decedent was also

the donor of the power and whether the power was created before or

during marriage. 206 The comment explains the reason for this departure
from the prior Code:

The general theory of revised Section 2-202(b)(2)(i) is that a

decedent who, during life, alone had a power to make himself
or herself the full technical owner of property was in substance

the owner of that property for purposes of the elective share.

Whether the decedent created that power or it was created by

another, and whether that power was created before or after

the marriage, are irrelevant. The only relevant criteria are whether

the decedent held that power at (or immediately before) death

or (while married and during the two-year period prior to the

decedent's death) irrevocably exercised or released it. 207

Unlike the time at which the general power of appointment is created,

the time of exercise or release is important for purposes of the elective

204. Id. § 2-202(b)(2)(i)-(iii).

205. Id. § 2-202(b)(2)(i). This subsection includes in the reclaimable estate:

[P]roperty to the extent the passing of the principal thereof to or for the benefit

of any person, other than the decedent's surviving spouse, was subject to a

presently exercisable general power of appointment held by the decedent alone,

if the decedent held that power immediately before his death or if and to the

extent the decedent, while married to his surviving spouse and during the two-

year period next preceding the decedent's death, released that power or exercised

that power in favor of any person other than the decedent or the decedent's

estate, spouse, or surviving spouse.

Interestingly, property subject to a power of appointment exercisable in favor of creditors

of the decedent's estate would not be includible in the reclaimable estate under this

paragraph. See I.R.C. § 2041(b)(1) (1986).

206. The pre-1990 UPC did not explicitly mention powers of appointment. Under
former section 2-202(1 )(ii), property subject to the decedent's presently exercisable general

power of appointment would presumably have been includible in the augmented estate if

the decedent created the power while married to the surviving spouse. U.P.C. § 2-202(1 )(ii)

(1983).

207. U.P.C. § 2-202 comment (Supp. 1991). The stated theory for including property

subject to powers of appointment created prior to marriage should apply with equal force

to any testamentary substitute and, in particular, to revocable trusts. See infra text following

note 238.



1991] REDESIGNED ELECTIVE SHARE 53

share. When the decedent exercises or releases a general power of ap-
pointment, the property subject to the power will be includible in the

reclaimable estate only if the decedent was married to the surviving

spouse at the time of the exercise or release. This distinction makes

sense for an elective share statute. If outright transfers of property are

subject to the right of election,208 the motive for those transfers should

be disinheritance. Inclusion of such property based upon this theory

does not, however, mandate the use of a subjective approach. The UPC
accomplishes this result by an objective scheme that includes only outright

transfers made during marriage and within two years of death. This
section makes the justifiable assumption that a married decedent who
exercises or releases a general power of appointment (or who transfers
an insurance policy or other property) in contemplation of death does

so to ensure that the surviving spouse will not receive the property at

death. The UPC adopts a blanket two year rule, thereby avoiding
unnecessary and difficult litigation regarding the decedent's motive in

making the transfer and whether it was made in contemplation of death.209

Essentially, the UPC adopts a per se rule throughout section 2-202 that
any transfer or release of a power or beneficial interest in a substantial

gift of property made while married and within two years of death is
in fraud of the augmented estate rights of the surviving spouse and

includible in the reclaimable estate.

The revised UPC takes a similar approach toward the decedent's
unilaterally severable interest in property held by the decedent and

someone other than a spouse with a right of survivorship. 210 As long

as the decedent held an interest in the property with a right of survivorship

immediately before his or her death, the decedent's interest is includible

in the reclaimable estate regardless of whether the right of survivorship

was created prior to marriage. Inclusion of this interest conforms to the

208. As the comment recognizes, a release of a power of appointment (or allowing

it to lapse at death) is in effect a transfer of "the property subject to the power to the

persons who benefit from a nonexercise of the power." U.P.C. § 202 comment (Supp.
1991). See also I.R.C. § 2041 (1986).

209. This approach is consistent with the prior section that included in the augmented

estate certain outright transfers made within two years of death. See U.P.C. § 2-202(l)(iv)

(1983).

210. U.P.C. § 2-202(b)(2)(ii) (Supp. 1991). This subsection includes in the reclaimable

estate:

[P]roperty, to the extent of the decedent's unilaterally severable interest therein,

held by the decedent and any other person, except the decedent's surviving

spouse, with right of survivorship, if the decedent held that interest immediately

before his death or if and to the extent the decedent, while married to his

surviving spouse and during the two-year period preceding the decedent's death,

transferred that interest to any person other than the decedent's surviving spouse.



54 INDIANA LAW REVIEW [Vol. 25:1

policy of the elective share because the decedent had unfettered access

to the property during marriage. If the decedent transferred an interest

to another person within two years of death, as with the release or

exercise of a general power of appointment, the property will be includible

only if the decedent was married at the time of the transfer. 211

In a dramatic change from the original version, the reclaimable estate

of redesigned section 2-202 includes insurance proceeds payable to a

person other than the surviving spouse to the extent that the decedent

retained certain incidents of ownership. 212 The exclusion of such proceeds

from the augmented estate is frequently criticized on the ground that

it provides an easy vehicle to disinherit a surviving spouse completely

or in part. 213 Under the current version, the right of election extends

to insurance proceeds if the decedent owned the policy, held one of the
prohibited powers immediately before death, or transferred the policy

to a person other than the decedent's spouse while married and within

the two year period prior to death. 214 Thus, if the decedent owned the
policy or held a prohibited power at death, then it is immaterial whether

the decedent acquired the policy or any of the powers before or during

marriage. If the decedent transferred the policy within two years of

death, the proceeds will be subject to the surviving spouse's right of

election only if the decedent was married to the surviving spouse at the

time of transfer.

Inclusion of insurance proceeds, regardless of when the policy was
acquired, represents a positive change in the UPC. The comment ac-

211. See supra note 208.

212. Compare U.P.C. § 2-202(1) (1983) with U.P.C. § 2-202(b)(2)(iii) (Supp. 1991).
Under the latter subsection, the reclaimable estate includes:

[P]roceeds of insurance, including accidental death benefits, on the life of the

decedent payable to any person other than the decedent's surviving spouse, if

the decedent owned the insurance policy, had the power to change the beneficiary

of the insurance policy, or the insurance policy was subject to a presently

exercisable general power of appointment held by the decedent alone immediately

before his death or if and to the extent the decedent, while married to his

surviving spouse and during the two-year period next preceding the decedent's

death, transferred that policy to any person other than the decedent's surviving

spouse.

Retention of the incidents of ownership with respect to an insurance policy would render

the proceeds includible in the gross estate for federal estate tax purposes under Internal

Revenue Code § 2042(2). Macdonald advocates a more inclusive policy toward insurance,

contending that "the surviving spouse should have a stronger claim against the husband's

life insurance than she would under the present estate tax provisions." W. Macdonald,
supra note 33, at 278. His position imposes an undue restraint on alienation and may
interfere with legitimate estate planning when the decedent has relinquished control over

the property. See Kwestel & Seplowitz, supra note 1, at 63 n.290.
213. See, e.g., Kwestel & Seplowitz, supra note 1, at 63-65.
214. U.P.C. § 2-202(b)(2)(iii) (Supp. 1991).



1991] REDESIGNED ELECTIVE SHARE 55

knowledges that "such arrangements could, under the pre- 1990 Code,

have been used to deplete the estate and reduce the spouse's elective-

share entitlement." 215 This is in stark contrast to the rationale for

excluding insurance proceeds payable to a nonspouse under the prior

Code. The former comment explained that insurance "is not ordinarily
purchased as a way of depleting the probate estate and avoiding the

elective share of the spouse."216 This about-face is telling not because

it represents an inconsistency or contradiction, but because it indicates

that as the types of nonprobate devices that may be used to disinherit
a surviving spouse contract, ingenious decedents who wish to disinherit
a spouse may begin to employ will substitutes that have not been used
invidiously in the past. This danger is clearly visible in the redesigned

UPC's treatment of other testamentary substitutes.

c. Testamentary substitutes includible if created during marriage

With respect to other testamentary substitutes, the revised UPC does
not fully promote the policies of the elective share. Section 2-

202(b)(2)(iv), 217 with some modifications, follows the scheme of former

section 2-202(1) which included in the augmented estate a number of

215. Id. § 2-202 comment.

216. U.P.C. § 2-202 comment (1983).
217. This subsection includes within the reclaimable estate:

[P]roperty transferred by the decedent to any person other than a bona fide

purchaser at any time during the decedent's marriage to the surviving spouse,

to or for the benefit of any person, other than the decedent's surviving spouse,

if the transfer is of any of the following types:

(A) any transfer to the extent that the decedent retained at the time of

or during the two-year period next preceding his death the possession

or enjoyment of, or right to income from, the property;

(B) any transfer to the extent that, at the time of or during the two-year

period next preceding the decedent's death, the income or principal

was subject to a power, exercisable by the decedent alone or in

conjunction with any other person or exercisable by a nonadverse

party, for the benefit of the decedent or the decedent's estate;

(C) any transfer of property, to the extent the decedent's contribution to

it, as a percentage of the whole, was made within two years before

the decedent's death, by which the property is held, at the time of

or during the two-year period next preceding the decedent's death,

by the decedent and another, other than the decedent's surviving

spouse, with right of survivorship; or

(D) any transfer made to a donee within two years before the decedent's

death to the extent that the aggregate transfers to any one donee in

either of the years exceed $10,000.

U.P.C. § 2-202(b)(2)(iv) (Supp. 1991).



56 INDIANA LAW REVIEW [Vol. 25:1

transfers in the form of testamentary substitutes made during the de-
cedent's marriage to the surviving spouse and for the decedent's benefit. 218

The first type of transfer is a retained life estate or the right to
receive income or to possess or enjoy the transferred property within

two years of death. 219 The next category includes any transfer in which
the decedent retained a power in conjunction with another or in which

a nonadverse party held a power over the income or principal for the

decedent's benefit. 220 This section includes a transfer in trust if the

decedent retained a power to revoke or a power to invade the income

or principal for his or her benefit. The third group includes a transfer

in which the property is held within two years of the decedent's death

by the decedent and a person other than the surviving spouse with a

right of survivorship. 221 The last category consists of all gifts in excess
of $10,000 per donee per year made by the decedent within two years
of death. 222 Like its predecessor, this section seeks to capture outright

218. This was true although the pre-1990 UPC, like the EPTL, included property
owned outright by the decedent that was acquired prior to marriage in the augmented

estate. See N.Y. Est. Powers & Trusts Law § 5-1. 1(c) (McKinney 1981); U.P.C. § 1-
201(11) (1983) (definition of "estate").

219. U.P.C. § 2-202(b)(2)(iv)(A) (Supp. 1991). The prior provision included only

those transfers pursuant to which the decedent retained possession or enjoyment of or

the right to income from the property at death. U.P.C. § 2-202(l)(i) (1983). This change

closes a loophole that would have allowed a decedent to immunize a transfer by reserving

the right to receive income until one month before death. See I.R.C. § 2036(a)(1) (1986);
Kwestel & Seplowitz, supra note 1, at 58-59.

220. U.P.C. § 2-202(b)(2)(iv)(B) (Supp. 1991). Under the prior section, only those

transfers were included in which the decedent retained a power over the principal at death.

This section also did not explicitly include transfers if the power was held only by a

nonadverse party. U.P.C. § 2-202(l)(ii) (1983). Thus, the revised version broadens and

clarifies its predecessor. Nevertheless, whether this section includes transfers in which the

decedent retained a power subject to an external standard (such as Horace's power in

the trust he created in Case 1) is unclear. See Kwestel & Seplowitz, supra note 1, at 60-
62 (arguing that transfers pursuant to which the decedent retained a power to invade

should be includible in the augmented estate regardless of the existence of an external

standard). Rejection of the external standard principle would accord with the UPC's policy

of focusing on the decedent's benefit in the transferred property.

221. U.P.C. § 2-202(b)(2)(iv)(C) (Supp. 1991). The prior section applied to any

transfer of property held at the decedent's death by the decedent and another with a

right of survivorship. U.P.C. § 2-202(l)(iii) (1983). Thus, it was narrower than the current

version because it did not contain the two year provision. It was also broader because

it did not restrict the time of transfer to two years before the decedent's death. The more

limited scope of the current provision can be explained by the addition of § 2-202(b)(2)(ii).

See supra note 210.

222. U.P.C. § 2-202(b)(2)(iv)(D) (Supp. 1991). The prior section captured gifts in

excess of $3,000 per donee per year within two years of death. U.P.C. § 2-202(l)(iv)

(1983). Excluding gifts below $10,000 could potentially damage a surviving spouse in a

less wealthy family. Some might argue that a better approach would be to include outright



1991] REDESIGNED ELECTIVE SHARE 57

gifts made in contemplation of death,223 but improves upon it by allowing

a decedent to utilize the gift tax annual exclusion of section 2503(b) of

the Internal Revenue Code without subjecting the gift to the right of
election.

224 Because the last category applies to outright gifts rather than

testamentary substitutes with retained interests or powers, its restriction

to transfers during marriage should not promote disinheritance. Although

some applications of the doctrine of transfers in fraud of marital rights

to antenuptial conveyances involve outright gifts, 225 individuals are gen-

erally reluctant to dispose of property, even shortly before death, without

retaining some power over or interest in the property. 226

The comment to revised section 2-202 does not explain why testa-
mentary substitutes, primarily life estates and transfers subject to retained

powers, are includible only if created during marriage. It merely states

that the purpose of including such transfers under the pre- 1990 Code
was ''to protect the surviving spouse against so-called 'fraud on the

spouse's share.'" 227 Although it notes that the revisions "strengthen this

feature of the pre- 1990 Code," it refers only to general powers of

appointment and life insurance.228 The comment's silence with respect

to these testamentary substitutes suggests its endorsement of the prior

rationale.

The justification given for this provision is to enable "a person to

provide for children by a prior marriage, as by a revocable living trust,

transfers that exceed a given percentage, for example, five percent of the estate, but the

author does not endorse this position. See also Minn. Stat. Ann. § 524.2-202(l)(iv) (West

Supp. 1991) (the augmented estate includes any transfer by the decedent "made within
one year of death of the decedent to the extent that the aggregate transfers to any one

donee in the year exceeds $30,000"); 20 Pa. Cons. Stat. Ann. § 2203(a)(6) (Purdon

Supp. 1991) (including property conveyed during marriage and within one year of death

"to the extent that the aggregate amount so conveyed to each donee exceeds $3,000").

223. This section appears to have been based upon I.R.C. § 2035 (1954), which

included in the federal gross estate all of the decedent's gifts made within three years of
death. The Economic Recovery Tax Act of 1981 substantially narrowed the scope of this

section which, for the purposes of this Article, applies to the relinquishment within three

years of death of powers retained pursuant to Internal Revenue Code §§ 2036, 2037, and

2038 and transfers of life insurance during that three year period. See I.R.C. § 2035

(1986).

224. The prior version captured gifts in excess of $3,000 which negatively impacted

on legitimate tax and estate planning. U.P.C. § 2-202(l)(iv) (1983). See Kwestel & Seplowitz,
supra note 1, at 65-66.

225. In a significant number of cases involving what appeared to be an outright

transfer, the decedent retained use of the property for life.

226. See, e.g., In re Estate of Riefberg, 58 N.Y.2d 134, 446 N.E.2d 424, 459

N.Y.S.2d 739 (1983) (amended shareholders agreement one day before death); Newman
v. Dore, 275 N.Y. 371, 9 N.E.2d 966 (1937) (decedent transferred all of his real and

personal property into a revocable trust three days before death).

227. U.P.C. § 2-202 comment (Supp. 1991).
228. Id. See supra notes 205, 212 and accompanying text.



58 INDIANA LAW REVIEW [Vol. 25:1

without concern that such provisions will be upset by later marriage." 229

This rationale is untenable in light of the stated purpose of the prior

section to capture in the augmented estate "transfers by the decedent

during his lifetime which are essentially will substitutes, arrangements

which give him continued benefits or controls over the property." 230 To
the extent that a retained interest or power, such as the right to receive

income from a trust or a power to revoke a trust, is equivalent to

ownership of the property, this distinction does not fulfill the purpose

of either the prior or current section.

Arguably, upsetting property arrangements made when the decedent
did not contemplate marriage is unfair, particularly with respect to

retained life estates. To give a surviving spouse a fractional share of
the corpus and to diminish the share of the remaindermen (perhaps

children from a prior marriage) may constitute too great a benefit to
the spouse and too great a detriment to the children. After all, absent

a power to invade the principal or a general presently exercisable power

of appointment, a decedent with a reserved life estate has no lifetime

interest in the principal, cannot undo the disposition unless all of the

beneficiaries consent, and has no expectation at the time of the transfer

that anyone other than the taxing authorities will be able to reach the

corpus. Despite these objections, including reserved life estates in some

manner in the elective share is the desirable approach and seems more

consistent with the policy of marriage as a total partnership. By bringing

the life estate into the marriage when a couple, such as Horace and
Wanda, may enjoy its benefits, a spouse should be deemed to have
converted it into partnership property. The right to enjoy possession of

or the income from the property is so significant that the Internal

Revenue Code approach equating this right with ownership should be
followed with some modification.

In addition to the estate tax analogy, a creditor's rights approach

can be used to analyze the rights of a surviving spouse. Analogizing

the survivor's rights to those of a creditor of the decedent's estate

229. U.P.C. § 2-202 comment (1983). The comment also indicates that "[t]he

limitation to transfers during marriage reflects some of the policy underlying community

property." Id. This policy is also reflected in the following statutes: Mo. Ann. Stat. §
474.150(2) (Vernon Supp. 1990) ("Any conveyance of real estate made by a married person

at any time without the joinder ... of his spouse ... is deemed to be in fraud of the

marital rights of his spouse."); Vt. Stat. Ann. tit. 14, § 473 (1989 & Supp. 1991) (right
of election includes "voluntary conveyance by a husband of any of his real estate made

during coverture and not to take effect until after his decease, and made with intent to

defeat his widow in her claim to her share"); Model Probate Code § 33(b) (1946) ("Any
gift made by a married person within two years of the time of his death is deemed to

be in fraud of the marital rights of his surviving spouse, unless shown to the contrary.").

230. U.P.C. § 2-202 comment (1983).



1991] REDESIGNED ELECTIVE SHARE 59

produces a different result with respect to retained life estates. The estate

tax analogy includes the property subject to the retained life estate as

long as the decedent enjoyed it close to or until death. A creditor's
rights analogy will require the creation of the life estate during marriage.

Indeed, the UPC's scheme of including marital transfers of property
subject to reserved life estates in the reclaimable estate can be justified

by analogizing the surviving spouse to a creditor of the decedent's estate.

At the time of such a transfer, a spouse knows that the surviving partner

has a potential claim in the form of a right of election against the

transferor's estate. Therefore, a spouse is on notice that any property

transferred, particularly in the form of a testamentary substitute, may
be subject to diminution to satisfy the elective share. This rationale

should apply even though the surviving spouse is not technically the

decedent's creditor during marriage. The surviving spouse, under the

UPC or other elective share statutes, does not have a recognizable
property interest in the decedent's assets before death, unlike common-
law dower and community property systems.

The same analysis appears to be valid with respect to similar types

of transfers in contemplation of marriage, yet it is not as compelling

as if the prospective spouse had notice, but did not consent to the

transfer. In that case, the individual who was unhappy with the disposition
could decide not to marry. If the transfer occurred during the engagement

period and the prospective spouse did not have notice, then this transfer

can also be analogized to a transfer in fraud of creditor's rights. In

both the engagement and marriage transfer cases, the decedent's motive

for making the transfer may be questionable. Despite the rejection by
the UPC and other progressive elective share statutes of the motive for
the transfer in assessing the validity of the disposition, the underlying

intent of these statutory schemes is to capture, in an objective sense,

those devices that decedents can use for purposes of disinheritance.

Does this analysis mean that the UPC is correct in insulating from
the right of election transfers of property subject to a retained life estate

not made in contemplation of marriage, namely, the situation in Case
1? For the reasons already discussed, the UPC and similar elective share
statutes should include such transfers because of the important benefits

enjoyed by the decedent up to death. A partnership model focuses not
on the time of transfer, but on the decedent's rights in the property

existing during marriage and continuing immediately prior to death.

Stated otherwise, property interests available to the partnership, as op-

posed to being generated during the partnership, should continue their

characteristic as partnership property at death. Furthermore, the argument

that a person, like Horace, who creates a reserved life estate prior to
engagement, is not on notice of his future wife's (Wanda's) interest

because he has not yet met her or contemplated marriage, is not per-



60 INDIANA LAW REVIEW [Vol. 25:1

suasive. In this era of multiple marriages, the possibility of a future

spouse should not be speculative.

Assuming that the partnership or marital-sharing theory is the correct

or desirable model231 does not mandate the exclusion of premarriage

assets from the augmented estate. In a number of jurisdictions, all of

a spouse's assets, regardless of when or how they were acquired, are
subject to division in case of dissolution of the marriage by divorce. 232

Without incorporating the specific features of a particular equitable

distribution system, this approach is equally reasonable in the elective

share area and does not conflict with any of the justifications for the

partnership theory of marriage.

This expansive view of partnership property does not mean that an
elective share system such as the UPC must ignore the pre-existing
property interests of the remaindermen, such as Doris and Sam in Case
1. Several alternatives exist to safeguard their interests in varying degrees.

The approach that is potentially most detrimental to the remainder

interests will embrace the federal estate tax model and give the surviving

spouse the appropriate percentage of the principal under the UPC's
accrual system or a fractional share under a more traditional elective

share statute such as the EPTL or the Pennsylvania statute. A federal
estate tax approach has the drawback of giving the surviving spouse an

interest in the principal that the decedent lacked during life.

231. Some courts continue to view the elective share as principally serving the

support needs of the surviving spouse. See, e.g., In re Merkel's Estate, 190 Mont. 78,

82, 618 P.2d 872, 875 (1980) ("The primary purpose of the elective share statutes is to

insure that the surviving spouse's needs are met, and that the spouse is not left penniless.").

232. See, e.g., Conn. Gen. Stat. Ann. § 46b-81(c) (1986) (in McPhee v. McPhee,

186 Conn. 167, 440 A.2d 274 (1982), the court recognized the Connecticut statute subjecting

premarital property to equitable distribution); Ind. Code § 31-1-1 1.5-1 1(b) (1988); Kan.

Stat. Ann. §§ 23.201, 60.1610(b) (1988 & Supp. 1990) (upon dissolution, the court "shall
divide the real and personal property of the parties, whether owned by either spouse prior

to marriage, acquired by either spouse in the spouse's own right after marriage or acquired

by spouse's joint efforts"); Mass. Gen. Laws Ann. ch. 208, § 34 (West Supp. 1991);
Mich. Comp. Laws Ann. §§ 552.19, 552.23(1) (West 1988 & Supp. 1991); Mont. Code
Ann. § 40-4-202 (1989); N.H. Rev. Stat. Ann. § 458: 16(a)(II)(m) (Supp. 1990); N.D.

Cent. Code § 14-05-24 (1981 & Supp. 1989) (in Fine v. Fine, 248 N.W.2d 838 (N.D.
1976), the equitable distribution statute allowed award of a spouse's separate property

even if it was acquired before marriage, and the period when the property was acquired

was only one factor to consider); S.D. Codified Laws Ann. § 25-4-44 (1984 & Supp.
1991); Vt. Stat. Ann. tit. 15, § 751 (1989); Wyo. Stat. § 20-2-114 (1977 & Supp. 1990).
Despite the language in these statutes and the cases authorizing a division of property

acquired before marriage or by gift or inheritance, commentators have noted a judicial

reluctance to subject such property to equitable distribution "unless the circumstances

warrant." See J. Oldham, supra note 194, at § 13.02[l][i]; Waggoner, Spousal Probate

Rights, supra note 1, at 356 & n.41.



1991] REDESIGNED ELECTIVE SHARE 61

The second alternative would give the surviving spouse the same

interest possessed by the decedent. Thus, in Case 1, Wanda would have
the right to remain in the house for the rest of her life. This model is

attractive, particularly with respect to the family residence, because it

avoids displacing the survivor from the family home. Nevertheless, de-

pending on the life expectancy of the surviving spouse, this alternative

may seriously disadvantage the remaindermen's interests. Certainly, it
would impinge on Horace's intent to provide for his children after his

death. Under this alternative, Horace and his children might have been

better off if he had not transferred the property, but had kept it in his

probate estate.

The last alternative would give the surviving spouse a fractional

share in the same property interest possessed by the decedent, an approach

that follows section 2203(a)(2) of the Pennsylvania statute. Thus, in Case

1, Wanda would receive a fifty percent life interest in the house under
the UPC's accrual system. This alternative has the advantage of ben-
efitting the surviving spouse by recognizing the partnership nature of

the life estate and giving the remaindermen an immediate interest in the

property as well as leaving their interest in the corpus intact. The

disadvantage would be to deprive the spouse of full enjoyment of the

property which is a potentially serious detriment in the case of a family

residence.

Of course, the easiest way for a decedent to avoid disadvantaging
the remaindermen, who are frequently children from a prior marriage,
is to disclose the existence of the arrangement to the prospective spouse

who can then waive the right of election against such property or agree
to a property settlement. This solution is also attractive because it

encourages honesty between parties prior to marriage and avoids the

troublesome issues associated with the doctrine of antenuptial transfers

in fraud of marital rights regarding the sufficiency of notice to the

prospective spouse.

If includibility of antenuptial transfers in the augmented estate is

to be judged by whether the surviving spouse had notice of the property

arrangement prior to marriage, then unless the decedent informed the

intended spouse of his or her possession of a life estate, the survivor

should not be on inquiry notice. To the external world, the enjoyment
of a life estate has many of the characteristics of full ownership. Con-
sequently, the prospective spouse may not know whether the decedent's
residence was owned as a life estate or in fee or whether an income
stream was derived from a trust or an investment in the decedent's

name. These reasons, coupled with the fact that in a substantial number
of cases involving retained interests or powers, the decedent retained a

life estate, suggest that an actual waiver requirement is desirable. Thus,

if protection of the surviving spouse is a goal of the elective share, life



62 INDIANA LAW REVIEW [Vol. 25:1

estates should be includible in the augmented estate regardless of when
created unless the surviving spouse consented to the transfer.

Different considerations, however, are involved if the decedent re-

tained a power to reach the transferred property. With respect to such

transfers, the stated justification for former section 2-202 (which appears

to have been adopted by the 1990 UPC) is also open to question. 233 A
person can provide for children of a prior marriage,234 insulated from

any claim by a surviving spouse, by making an irrevocable gift or a

transfer in trust without retaining any prohibited powers.235 If the in-

dividual has, as the comment to pre-1990 section 2-202 indicated, kept
a power to invade the corpus, he or she has demonstrated an intent to

retain substantial control over the property, including the power to

"upset" the arrangement. Furthermore, because the inter vivos property

arrangements and testamentary substitutes included in the reclaimable

estate under section 2-202(b)(2)(iv) (or in the augmented estate under

former section 2-202(1)) are primarily for the benefit of the decedent,

the UPC's rationale for including only marital transfers is even more
untenable. Therefore, such provisions should be subject to the right of

election by a later spouse. To protect a trust with a retained power
from the right of election in the event of a subsequent marriage, the

settlor could relinquish the prohibited power prior to the marriage. 236

The settlor would then be treated as making an irrevocable gift, and

the transferred property would belong to the children free of the surviving

spouse's claim under an elective share statute. 237 Protecting children of

233. For views that the elective share should only reach property acquired during

marriage, see Okla. Stat. Ann. tit. 84, § 44(B) (West 1990) (elective share limited to

property acquired by joint efforts after marriage); Utah Code Ann. §§ 75-2-201, -202

(1978 & Supp. 1991); Oldham, supra note 1, at 246 ("the forced share should be limited
to the acquisitions of the decedent during marriage, other than gratuitous transfers from

third parties").

234. The comment does not address the case of prenuptial testamentary substitutes

for the benefit of people other than children or why such transfers should be excluded.

235. An example of this includes a power to revoke or invade the principal.
236. If the settlor dies within two years after the gift was made, the transferred

property (even if in excess of $10,000 "to any one donee in either of the years") is not

subject to a right of election in a UPC jurisdiction. U.P.C. § 2-202(b)(2)(iv)(D) (Supp.
1991). Although the gift would be deemed to have been made in contemplation of death,

it was not made during marriage. See 20 Pa. Cons. Stat. Ann. § 2203(a)(6) (Purdon

Supp. 1991) (gifts made during marriage and within one year of death are subject to the

right of election). The same rationale applies to a release of a life estate or a prohibited

power. See U.P.C. § 2-202(b)(2)(iv) (Supp. 1991). To the extent that gifts in contemplation
of death are includible in the net estate for elective share purposes, property subject to

prohibited powers which have been relinquished within one or two years of death should

also be included. See I.R.C. §§ 2035(d)(2), 2038(a)(1) (1986).

237. See Ind. Code § 29-1-3-1 (1988) (adjusting the elective share where there are



1991] REDESIGNED ELECTIVE SHARE 63

a prior marriage can be accomplished by giving a surviving spouse the

right to a smaller fractional interest in testamentary substitutes created

prior to marriage. The decedent could also have entered into an agreement

with the intended spouse that provides for a waiver of the right of

election over such property.238

The retained powers section of UPC section 2-202 includes revocable
trusts created by the decedent. Thus, the principal is includible in the

augmented estate only if the trust was created during marriage. To be
internally consistent, the UPC should add the principal of the trust to
the augmented estate regardless of when the decedent established it. A
trust subject to a power of revocation is similar to the property ar-

rangements set forth in subsections (b)(2)(i), (ii), and (hi). The decedent

who had the ability during life to obtain full ownership over property,
has the same power under a revocable trust. A simple exercise of the
power recaptures the principal. The same approach can be taken toward

transfers of property when the decedent possessed a power to revoke
or terminate because he or she was the only person with an interest in

the property. Under the UPC's framework, if the decedent retained a
power to revoke or terminate with an adverse party, the trust would

then be a transfer of the type covered by subsection (b)(2)(iv) and would

be includible only if created during marriage.

Ideally, trust property in which the decedent retained a power, either

alone or in conjunction with another person, to revoke or consume the

principal for his or her benefit should be includible in the augmented

estate to the extent of the power. Regardless of whether the trust was

created during the marriage, during the engagement, or before the en-

gagement, the decedent had the ability to regain full ownership of all

or part of the property. This same conclusion is reached by applying

an estate tax analogy that examines the decedent's economic power over

property at death.239 If the surviving spouse is viewed as a creditor, the

spouse should be able to elect against the property if the decedent

retained a power to revoke until death.240

d. Implications of the UPC's treatment of antenuptial transfers

A recent Arkansas case presents a stark illustration of the inequity
that can be created under the UPC's scheme of excluding testamentary

children from a prior marriage); Wyo. Stat. Ann. tit. 2, § 2-5-101 (1980) (adjusting the
elective share where there are children from a prior marriage). See also Wis. Stat. Ann.

§ 861.17(2)(West 1991) (an arrangement before or within one year of marriage to provide

for issue of a prior marriage is not fraudulent).

238. The validity of these waivers is recognized in redesigned U.P.C. § 2-204.

239. See I.R.C. § 2038(a)(1) (1986).

240. See, e.g., N.Y. Est. Powers & Trusts Law § 10-10.6 (McKinney 1967) (treating
settlor who reserved "an unqualified power of revocation" as "the absolute owner" of
the transferred property for creditors' rights purposes).



64 INDIANA LAW REVIEW [Vol. 25:1

substitutes created prior to marriage even if for the benefit of children

from a previous marriage. In Efird v. Efird, 24i a man conveyed four
lots to his children from a prior marriage and reserved a life estate.

The transfer occurred two days before his second marriage without

consideration or notice to his prospective wife. 242 Fourteen years after

the transfer and one year after she learned of the conveyance, the wife

sought the cancellation of the deeds as fraudulently denying her rights

to the property. At trial, the wife testified that she and her husband

were married and lived in the home that her husband built on the
transferred property and that she decorated. 243 When her husband became
ill, she asked him "if she would have a place to live if something

happened to him, and he said: 'No, you'll have to get on welfare, or

your son'll have to take care of you.'" 244 The wife was told that she

had no interest in the house.

The appellate court held that the wife was entitled to a life estate

in the property. 245 It relied on a long line of Arkansas cases that applied

the general rule:

[I]f a man or woman convey away his or her property for the
purpose of depriving the intended husband or wife of the legal

rights and benefits arising from such marriage, equity will avoid

such conveyance or compel the person taking it to hold the

property in trust for or subject to the rights of the defrauded

husband or wife. 246

241. 31 Ark. App. 190, 791 S.W.2d 713 (1990).

242. In fact, the prospective husband executed a quitclaim deed the following day

(one day prior to the marriage) to correct the earlier warranty deed. Id. at 191, 791

S.W.2d at 713.

243. The husband died following the chancellor's dismissal of the wife's complaint;

however, the case, which was also brought against the children, proceeded to appeal. Id.

244. Id. at 192, 791 S.W.2d at 714. Following this conversation, the wife checked

the courthouse records and confirmed that she had no interest in the house. Evidently,

the court assumed that by recording the deeds, the husband did not place his wife on

constructive notice.

245. Id. at 195, 791 S.W.2d at 716. Because the wife testified at trial that she only

wanted a life estate in the property, the trial court, on the defendant's motion, conformed

the pleadings to her testimony.

246. Id at 192, 791 S.W.2d at 714 (quoting West v. West, 120 Ark. 500, 504, 179

S.W. 1017, 1018 (1915)). Except for West, in which the transfer was upheld because the

man apparently conveyed the property prior to his engagement, all other cited cases
applying the rule held the transfer to be fraudulent. See Wilhite v. Wilhite, 242 Ark.

705, 415 S.W.2d 44 (1967); Harrison v. Harrison, 198 Ark. 64, 127 S.W.2d 270 (1939);

Roberts v. Roberts 131 Ark. 90, 198 S.W. 697 (1917). The Efird court did not state what

rights were defrauded, but presumably the court was referring to rights of dower, homestead,

and a forced share. See also 20 Ark. Stat. Ann. §§ 28-11-301, 28-11-305, 28-11-307,

28-39-102, 28-39-401 (1987).



1991] REDESIGNED ELECTIVE SHARE 65

Although the husband appeared to be motivated by a desire to protect

his children,247 the court stated that the wife need only establish con-

structive fraud which did not require an actual intent to deceive. 248 Based

on the evidence, the court had no difficulty finding constructive fraud.

The court in Efird did not justify* its result based upon the nature

of the marital relationship. The court was swayed by the short period

of time between the transfer and the marriage as well as the fact that

the wife lived on the property with her husband for thirteen years. 249

The court also considered that the husband did not want her to have

any interest in the property, but it did not discuss whether the house

should be considered assets of the marital partnership. 250 Such an analysis

would, however, produce an affirmative response. Although the husband

purchased the property with his own funds, his wife contributed to its
furnishing and maintenance. In addition, the husband made mortgage
payments during the marriage with funds that may have constituted
marital assets. 251 Based on a marital-sharing or a return-of-contribution

theory (both of which would recognize the wife's justifiable expectations),

the property should be subject to the wife's right of election. 252 The

same result would be reached under a commitment theory.

247. In each of the cases cited by the court, the husband transferred property to

his children from a prior marriage or, as in Roberts, to a foster child, and reserved an

actual or de facto life estate in himself. Except for West v. West, in which the court

intimated that a provision for children might mitigate against finding a fraudulent intent,

none of the cases recognized the exception that a transfer for the benefit of children is

not fraudulent. See also Barnett v. Barnett, 209 Ark. 973, 193 S.W.2d 319 (1946) (in-

validating a deed executed three days before a five week marriage which reserved a de

facto life estate in favor of a nonmarital child insofar as dower and homestead rights

were concerned). Apparently, only one reported Arkansas case involving the application

of the doctrine to an antenuptial transfer made after an engagement failed to invalidate

the conveyance. In O'Connor v. Patton, 171 Ark. 626, 286 S.W. 822 (1926), a man
transferred real estate to a friend 11 days before marriage. The deed was absolute on its

face, but the evidence indicated that the grantee held it on an oral trust for the husband's

benefit. Although his motive was to prevent his future wife from acquiring any rights to

the property, the court refused to set aside the deed because of equitable considerations.

The wife was married at the time of her engagement and a few days after the wedding

she refused to live with her new husband, indicating that she married solely for financial

gain.

248. Efird v. Efird, 31 Ark. App. 190, 192, 791 S.W. 713, 715 (1990). See Barnett,

209 Ark. at 974, 193 S.W.2d at 319-20 (antenuptial deed is fraudulent even if the prospective

husband lacked intent to disinherit his future wife). But see West v. West, 120 Ark. 500,

504, 179 S.W. 1017, 1018 (1915) ("Fraud is never presumed, but must be proved.").

249. Efird, 31 Ark. App. at 195, 791 S.W. at 715.

250. Id.

251. See Wilhite v. Wilhite, 242 Ark. 705, 707, 415 S.W.2d 44, 45 (1967) (a deed

executed by a prospective husband 10 days before marriage held to be fraudulent because

the wife "worked and helped to pay off a mortgage on the land after they were married").

252. These two notions underlie the partnership theory of marriage propounded by



66 INDIANA LAW REVIEW [Vol. 25:1

Most importantly, the husband, in effect, transformed the property

into marital property by making it the family home. 253 In reality, he

was no less the owner than if he had not transferred the property to

his children because his lifetime enjoyment of it was basically comparable

to full ownership. He reaped the same lifetime benefits from the property
regardless of whether he transferred the remainder interest before or

after his marriage or whether he made the transfer. Indeed, the husband's
enjoyment of the property would not have been diminished if he executed

the deed prior to his engagement or prior to meeting his second wife.

In addition, his wife's contribution to the maintenance of the house in

any of these cases would not have been substantially different. Based

on a partnership theory of marriage, a determination of the includibility

of the property in the elective share should focus on the decedent's

lifetime interest, not on the date a transfer may have occurred. Neither
the doctrine of antenuptial transfers in fraud of marital rights nor the

UPC produces an equitable or desirable result.
Despite the compelling reasons for giving the wife in Efird an interest

in the house after her husband's death, under UPC section 2-
202(b)(2)(iv)(A), she could not elect against it solely because the life

estate was created before marriage. This result is untenable under either

a partnership or support theory of the elective share. This transfer cannot

be upheld as a conveyance designed to enable children from a prior

marriage to enjoy the fruits of premarriage assets. The judgment in

Efird protected the children from a prior marriage and the surviving

spouse. Granted, the children will have to wait longer for their remainders

to become possessory, but they have not lost their property interests.

Furthermore, if the court awarded the widow an elective share, pre-

sumably she would have received only a fraction of the value of the

property or the life estate. This result is preferable to the totally ex-

clusionary system of the UPC and other elective share statutes such as
the Pennsylvania and New York statutes. With the availability of the
life estate (or any other testamentary substitutes) to the husband during

marriage, the property begins to lose its characteristic of premarital or

separate property, thereby diminishing the children's equities in it. As
the length of the marriage increases and the commitment of the spouses

the UPC. See U.P.C. art. II, pt. 2 general comment (Supp. 1991). See also supra notes
184-87 and accompanying text.

253. This case demonstrates the continuing importance of the support justification

for the elective share. See U.P.C. art. II, pt. 2 general comment (Supp. 1991). The

importance of the family home to the surviving spouse and dependent children is also
recognized in some jurisdictions (including Arkansas) by the homestead allowance. Pre-

sumably, if the husband had not transferred the property reserving a life estate, his

surviving spouse could have claimed a homestead allowance.



1991] REDESIGNED ELECTIVE SHARE 67

to each other presumably increases, the children's claims decrease and

the UPC's accrual system appropriately accommodates the competing
interests of the surviving spouse and children from a prior marriage.

The equities of the children or other third parties are much greater
when the decedent makes an outright transfer prior to marriage. For

example, if Mr. Efird (or Horace, in Case 1) transferred the real property

outright to his children, the UPC correctly excludes that property from
the augmented estate. Property that was not brought into the partnership

does not become partnership property. This situation, however, points

to a serious shortcoming of the common-law doctrine applicable to
outright as well as retained interest transfers. The common-law doctrine
was only applicable to transfers in contemplation of marriage. Otherwise,

the undesirable result of making outright transfers susceptible to challenge

would ensue. 254 Although outright transfers may on rare occasions pose
a threat to the surviving spouse, they can best be dealt with under the

applicable law of fraud.

V. Recommendations for Change

Analysis of the common-law doctrine of antenuptial transfers in
fraud of marital rights and several of the more progressive statutory

elective share schemes indicates that integration of the two systems is

necessary to promote the goals of marital partnership and support of

the surviving spouse. To achieve more predictable results, consistency
among the jurisdictions, and certainty in legitimate estate planning, it
is desirable to abolish the common-law doctrine and amend the elective
share statutes to take antenuptial transfers into account.255 Specifically,

the following guidelines for statutory change are proposed.

254. But see Patecky v. Friend, 220 Or. 612, 350 P.2d 170 (1960) (granting a second

wife a forced share despite a will contract requiring the decedent to leave his property

to his first wife when the second wife did not have notice of the will contract or existing

mutual wills).

255. The Advisory Committee Report reflects a step in this direction with respect

to revocable testamentary substitutes. Macdonald's Suggested Model Decedent's Family

Maintenance Act applies only to postnuptial transfers, "but the underlying policy applies

also to antenuptial transfers." W. Macdonald, supra note 33, at 359. This proposed
legislation, which is concerned with providing sufficient maintenance for the surviving

spouse, supports an inquiry into the size of the transfer prior to marriage. Macdonald

believed that many cases show that courts applied the same illusory transfer doctrine used
to test the validity of postnuptial transfers to prenuptial transfers. Id. at 360 n.25. This

is particularly true with personalty because the right to dower supported actions to set

aside conveyances of realty. To determine whether a prenuptial transfer should be subject
to the surviving spouse's right of election, he proposed using a "reasonableness" test.

Id. at 363-64. "Recovery would not hinge on the state of mind of either the man or the
woman at the time of transfer, or whether the husband is alive or dead at the time of
the litigation, on the fortuitous nature of the wife's 'interest' during coverture, or on the

type of property that is involved." Id. at 364-65.



68 INDIANA LAW REVIEW [Vol. 25:1

A. Outright Transfers Before Marriage

Under the common-law doctrine or its codifications, outright transfers
can be divided into two types: those that occur during the engagement

period or in contemplation of marriage and those that precede marriage

plans. As a general rule, the doctrine only applies to the first category.
Under the statutory approaches utilizing objective criteria to determine

the includibility of inter vivos dispositions in the elective share, outright

transfers of either type are excluded. In Pennsylvania or a UPC juris-
diction, only outright transfers in contemplation of death and during

marriage constitute testamentary substitutes. New York excludes outright
transfers from the net estate, but even revocable gifts causa mortis may
be excluded if given before marriage. 256

In contemporary society, couples generally do not enter into property

settlements upon engagement. Abolishing the distinction between transfers

before and after engagement is recommended because the actual date
of the engagement may be uncertain.257 (This also eliminates the need
to determine if a person transferred property in contemplation of an

engagement.) Dispensing with this distinction produces an analytically

correct result because it no longer requires a finding of marital rights

prior to marriage when none exist. Particularly in jurisdictions that no
longer recognize common-law dower or that have not adopted a com-
munity property system, it is clear that inheritance is not a vested or

contingent property right. A spouse may make large outright gifts of
property during marriage258 free from any claim of the surviving

spouse. 259 The only exceptions are transfers or gifts made in contemplation

256. See supra note 170 (changes recommended by the Advisory Committee Report).

257. Uncertainty as to whether the transfer occurred before or after the engagement

was a factor in the court's decision to order a remand in Papouchis v. Papouchis, 28

A.D.2d 554, 280 N.Y.S.2d 160 (1967). See Wis. Stat. Ann. § 861.17 (West 1991) (applying

to transfers in contemplation of marriage).

258. An argument can be made that all post-marriage transfers to nonfamily members
without adequate consideration, regardless of whether they are outright, should be included

in the augmented estate. This approach is a modification of the community property

model.

259. The only exception is for outright gifts made in contemplation of death. Under

the UPC, the surviving spouse has a right to elect against any transfers made by the
decedent within two years of death "to the extent that the aggregate transfers to any one

donee in either of the years exceeded $10,000." U.P.C. § 2-202(b)(2)(iv)(D) (Supp. 1991).

Pennsylvania's analogous provision applies only to transfers made within one year of

death. 20 Pa. Cons. Stat. Ann. § 2203(a)(6) (Purdon Supp. 1991). In New York, a
surviving spouse may elect against a lifetime gift only if it is a gift causa mortis. N.Y.
Est. Powers & Trusts Law § 5- 1.1 (b)(1)(A) (McKinney 1981). But see supra note 170
(recommendation of the Advisory Committee Report).



1991] REDESIGNED ELECTIVE SHARE 69

of death under a statute like the UPC or the Pennsylvania estates law.
Finally, elimination of the doctrine of antenuptial transfers in fraud of

marital rights should not decrease the level of protection afforded to

the surviving spouse or increase the number of cases of spousal disin-

heritance. It is unlikely that a decedent will give away all or a significant

part of his property prior to death,260 albeit prior to marriage.

The vast majority of cases dealing with premarriage transfers involve

a retained interest or power, generally a reserved life estate. Therefore,

without significantly harming a surviving spouse, an elective share statute

should exclude outright transfers from the right of election unless they

are made in contemplation of death. To avoid upsetting outright gifts,
an elective share statute should consider shortening the period within

which such gifts are captured to one year. Any transfer in excess of
$10,000 to any donee within one year of death would be includible in

the augmented estate, regardless of whether it preceded or followed

marriage. Such measures cover transfers motivated by a desire to dis-

inherit a surviving spouse or that unfairly benefit children from a prior

marriage. Under this approach, difficult tracing problems are avoided,

and legitimate estate and tax plans remain intact.

B. Will Substitutes

For the foregoing reasons, the distinction between will substitutes

made during the engagement period and those not made in contemplation
of marriage should be abolished. Any will substitute created by a decedent
that confers a substantial benefit or gives the grantor significant economic

control should be subject to the right of election whether made before
or during marriage. The UPC's reclaimable estate should be amended
to include not only property over which a decedent holds a presently

exercisable power of appointment, unilaterally severable interests held

by a decedent with right of survivorship, and life insurance regardless

of when these interests arose, but also the other categories of will
substitutes enumerated in section 2-202(b)(2)(iv). The surviving spouse
should have, at a minimum, a fractional share of retained life estates
created prior to marriage either by the enjoyment of the property or

an income stream for life. A similar approach should be taken with
respect to the Pennsylvania and New York elective share statutes. This
yields a consistent result in Cases 1, 2, and 3 and equitably accommodates

the interests of the surviving spouse and any children from a prior

marriage.

260. See supra note 226 and accompanying text.



70 INDIANA LAW REVIEW [Vol. 25:1

VI. Conclusion

The proposed guidelines, if adopted, advance fairness, predictability,

and consistency of elective share statutes by promoting the goal of

marriage as a total partnership. The doctrine of antenuptial transfers

prior to marriage is rejected. However, the guidelines incorporate the

underlying theory of the doctrine by recognizing and counteracting the

detrimental effect many premarriage transfers have on the rights of the
surviving spouse.