Master Elective share dispute centered on whether nonprobate or inter vivos transfers are includable in the estate base against which a surviving spouse may claim. with this comprehensive case brief.
Elective share cases test the boundary between testamentary freedom and spousal economic security. Across the states, litigants routinely contend over whether a decedent may use lifetime transfers or will substitutes (such as revocable trusts, joint accounts, TOD/POD designations, or closely held corporate restructurings) to minimize the probate estate and thereby defeat a surviving spouse’s elective share. Cases captioned O’Neill v. O’Neill have appeared in multiple jurisdictions; at least one such matter involves elective share questions of whether assets moved outside probate remain reachable by a surviving spouse under statutory or common-law anti-avoidance doctrines.
Because several distinct cases bear the name O’Neill v. O’Neill, the precise holding, governing statute, and doctrinal test (e.g., augmented estate inclusion, illusory transfer, retention-of-control, or intent-to-defraud) depends on the jurisdiction and year. The analysis below frames the typical issues and reasoning patterns that characterize O’Neill-type elective share disputes, flags the key rules courts apply, and explains how such a case would be briefed once the correct jurisdiction and citation are confirmed.
Unknown—multiple cases share this caption; please provide jurisdiction and year/citation
Insufficient information to provide case-specific facts without a jurisdiction and citation. In the common elective share scenario reflected by cases captioned O’Neill v. O’Neill, the decedent, shortly before death or over time, transfers substantial assets into nonprobate forms—most often a revocable inter vivos trust, joint accounts with rights of survivorship, beneficiary-designated accounts (life insurance, retirement plans, TOD securities), or closely held corporate interests structured to pass outside probate. The surviving spouse asserts an elective share (or statutory forced share) and seeks to include those assets in the estate base, arguing that the transfers were illusory, made in fraud of marital rights, or otherwise subject to inclusion under an augmented-estate statute. The personal representative, trustee, or transferees respond that the transfers were valid inter vivos dispositions, not testamentary, and therefore fall outside the elective share statute’s reach. The trial court’s decision typically turns on the governing state statute and the court’s choice among tests such as the Uniform Probate Code augmented estate approach, the illusory transfer test, a retention-of-control or will-substitute analysis, or an intent-to-defraud standard.
Whether, and to what extent, nonprobate or inter vivos transfers made by a decedent—such as revocable trusts, joint accounts, or beneficiary designations—are includable in the base against which the surviving spouse’s elective share is calculated under the governing state law.
Elective share rights are statutory and vary by jurisdiction. Broadly: (1) Under augmented estate statutes (e.g., UPC §§ 2-202 to 2-208), the elective share is measured against an ‘augmented estate’ that aggregates probate assets with certain nonprobate transfers, including property over which the decedent retained the power to revoke, consume, or direct beneficial enjoyment, survivorship interests to the extent of the decedent’s contribution, and some lifetime gifts made in contemplation of death. (2) In non-UPC jurisdictions, courts use common-law anti-avoidance doctrines: (a) the illusory transfer test (voiding transfers that reserve to the decedent substantial control or benefit such that the transfer is only nominal); (b) the retention-of-control or will-substitute test (treating revocable trusts and similar arrangements as testamentary for elective share purposes if the decedent retained dominion); and/or (c) an intent-to-defraud test (invalidating or including transfers made with the purpose of defeating the spouse’s rights). (3) Elective share claims are subject to statutory procedures (timely election, notice, waiver/prenuptial agreement defenses) and offsets/credits for property the surviving spouse already received.
Unable to state a case-specific holding without the correct jurisdiction and citation. Generally, courts either: (a) include revocable trust and similar will-substitute assets in the elective share base when the decedent retained control, or (b) exclude truly completed, non-illusory inter vivos transfers lacking retained powers, absent a specific statutory directive to aggregate them.
Courts resolving O’Neill-type elective share disputes first identify the controlling statute and policy. If the jurisdiction has adopted an augmented estate scheme, the court asks whether the challenged transfer falls within statutory categories of includable nonprobate property—most importantly whether the decedent retained a power to revoke or consume, or whether the asset passed by survivorship funded by the decedent. The analysis is often granular: for joint accounts, courts examine contributions; for revocable trusts, the retained powers and the extent of control; for retirement or insurance, statutory carveouts may control. In non-UPC jurisdictions, courts use common-law frameworks to prevent spousal disinheritance by form. Under the illusory transfer test, the court scrutinizes whether the decedent’s retained dominion rendered the transfer nominal; if so, the property is treated as reachable for the spouse’s share. Under a will-substitute or retention-of-control approach, revocable trusts or TOD devices are viewed as functional wills, meriting inclusion. Some courts require proof of intent to defraud marital rights, looking to badges of fraud like proximity to death, lack of consideration, secrecy, or disproportionate divestment. Across approaches, courts weigh testamentary freedom against the protective function of the elective share, seeking to prevent manipulative end-runs around the statute while respecting truly completed lifetime gifts. Procedurally, courts also assess whether the spouse timely elected, whether a premarital or postmarital agreement waived the elective share, and whether equitable remedies (constructive trust, surcharge) are proper against transferees if inclusion is ordered.
Elective share litigation is foundational in Wills, Trusts & Estates because it exposes the architecture of modern wealth transfer—much of which occurs outside probate. O’Neill-type cases teach students to: (1) map the estate base under their jurisdiction’s statutory framework; (2) analyze will substitutes and lifetime transfers with a functional lens; (3) apply anti-avoidance doctrines to protect spousal rights; and (4) navigate procedural traps (election deadlines, waivers, credits/offsets). Mastery of these issues equips students to counsel clients on estate planning strategies that honor both testamentary intent and statutory spousal protections.
Pin down the jurisdiction, year, and reporter citation from your syllabus or casebook. Elective share disputes will be in probate or appellate courts addressing spousal rights against a decedent’s estate, often discussing revocable trusts, joint accounts, or will substitutes. If you cannot locate the citation, ask for the reporter reference or provide docket details so the correct opinion can be briefed accurately.
Key facts include the decedent’s retained powers (revocation, amendment, withdrawal, control over distributions), the timing and purpose of the transfer, the source of funds (who contributed), the form of title (joint tenancy vs. tenancy in common), and any badges of fraud (secrecy, proximity to death, lack of consideration). In UPC jurisdictions, statutory categories control; in others, dominance or illusory nature of the transfer carries significant weight.
A valid waiver can bar or limit elective share claims if executed knowingly and voluntarily, with fair disclosure (or a waiver of disclosure) and compliance with statutory formalities. Courts scrutinize the agreement’s scope (does it expressly waive elective share and claims against nonprobate transfers?) and fairness at execution; some jurisdictions also assess unconscionability at enforcement.
Not always. Many courts include revocable trust assets because the settlor retained control, treating them as will substitutes. Under UPC augmented estate rules, revocable trust property is typically includable. However, some jurisdictions without augmented estate statutes may exclude truly completed gifts to irrevocable trusts with no retained control, or they may require proof of intent to defraud before inclusion.
Courts may impose a constructive trust, order contribution from transferees, or surcharge fiduciaries to satisfy the spouse’s elective share. Statutes often provide apportionment rules among recipients. Procedural steps—notice to transferees, joinder of necessary parties, and timely claims—are crucial to securing effective relief.
Elective share cases under the O’Neill v. O’Neill caption highlight the friction between testamentary autonomy and mandatory spousal protection. The dispositive analysis turns on the jurisdiction’s statutory scheme and the functional nature of the decedent’s transfers—particularly whether the decedent retained the kind of control that makes a lifetime transfer effectively testamentary.
To deliver a precise, citable brief, I need the jurisdiction and citation for the specific O’Neill v. O’Neill decision assigned in your course. Once provided, I will replace the generic framework above with the case’s exact facts, governing statute, holding, and reasoning, and tailor the analysis to the controlling doctrine in that jurisdiction.