Lead Opinion
This Cоmmonwealth has a “long existing public policy ... to protect the rights of [a surviving spouse]” against total disinheritance by his or her deceased spouse. In re Pengelly’s Estate,
In today’s case, we consider for the first time the effect of 20 Pa.C.S. § 7710.2, enacted in 2006, upon the scope of the assets used to calculate the pretermitted spousal share. Section 7710.2 provides that the rules of construction that apply to the provisions of testamentary trusts also apply to the provisions of inter vivos trusts.
On January 12, 2001, while married to Joanne Kulig (“Joanne”), David Kulig (“Decedent”) executed a revocable trust (the “Trust”) naming himself as trustee. The named beneficiaries of the Trust upon Decedent’s death were his then-wife Joanne, and the children born to Decedent and Joanne. Pursuant to the terms of the Trust, Decedent had the prerogative to receive any portion of the trust income during his lifetime, to draw any amount of the trust principal for his own welfare, comfort, and support, and to terminate the Trust.
Joanne died on August 15, 2010. On December 13, 2010, Decedent prepared a Last Will and Testament. Approximately one year later, on December 30, 2011, Decedent married Mary Jo Kulig (“Wife”), Appellee herein. Since the will had been executed before his second marriage, it made no provision for Wife. Nor did the will include any indication that Decedent had contemplated remarriage when he executed it.
On February 3, 2012, barely one month after marrying Wife, Decedent died, survived by Wife and by his children, Carrie C. Budke and James H. Kulig (collectively “Children”), Appellants herein. By the
The parties stipulated that Wife, a pre-termitted spousе under Pennsylvania law, is entitled to receive the same share of Decedent’s estate to which she would have been entitled had he died intestate, see 20 Pa.C.S. § 2507(3),
The parties disputed whether the Trust may be considered part of the intestate estate for purposes of calculating the pre-termitted spousal share or is instead available to Wife only in the event that she chooses to claim her elective share pursuant to Section 2203 of the Code, which expressly includes in the elective share “[pjroperty 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, invаde or dispose of the principal for his own benefit.” 20 Pa.C.S. § 2203(a)(3). In the former case, Wife would receive, one half of the intestate estate and one half of the Trust corpus, with no deductions. In the latter case, Wife would have access to the Trust only by spousal election, pursuant to which she would receive one third of the probate estate and' one third of the Trust corpus, subject to certain charges against the gross elective share. See 20 Pa.C.S. § 2204(c), According to the parties, if Wife prevails, she would take approximately $1.5 million more than she would if Children’s view is correct.
Children filed a petition for declaratory judgment
Assets that pass outside a decedent’s probate estate, such as by the terms of a funded inter vivos trust (whether revocable or irrevocable), by operation of law (e.g., jointly owned assets, “payable on death” accounts, “in trust for” accounts) or by beneficiary designation (e.g., life insurance, IRAs), are not subject to the intestacy statutes because such assets are “effectively disposed of ... otherwise.”
Brief for Children at 16-17 (emphasis in original) (citing Estate of Sauers,-
. On September 12, 2014, the Orphans’ Court issued a Decree entering judgment in Wife’s favor, and a Memorandum Opinion in support thereof. The court began by asserting that Subsection 2507(3) effectively provides for a “modification” of a will that excludes a spouse who marries a decedent after execution of the will when the will contains no indication that, it was prepared in anticipation of.-the marriage. Orphans’ Court Opinion (“O.C.O.”) at 7. Pursuant to Subsection 2507(3), the court found, Wife was entitled to the share of the probate estate that would have passed through intestacy in the absence of a will.
The Orphans’ Court then turned to Section 7710.2, which • provides that “[tjhe rules of construction that apply in this Commonwealth to the provisions of testamentary trusts also apply as appropriate to the provisions of inter vivos trusts.” 20 Pa;C.S. I 7710.2. The. court observed that the 2005 Joint State Government Committee Comment to Sectiоn 7710.2 asserts that it “imports 20 Pa.C.S. §§ 2507, 2514, and 2517 and other statutory and judicial rules of interpretation that apply to trusts under wills,” ie., testamentary trusts.
In so ruling, the Orphans’ Court relied upon various aspects of the commentary appended to Section 7710.2. For example, the commentary to Section 7710.2 notes the “functional equivalence between the revocable trust and a will,” such that “the rules for interpreting the disposition of property at death should be the same whether the individual has chosen a will or revocable trust.” 20 Pa.C.S. § 7710.2, Uniform Law Cmt. (“ULC”). The comment continues: “Few legislatures have yet to extend these rules of construction to revocable trusts.... ” Id. Thus, rather than “attempting] to prescribe the exact rules to be applied to trusts,” the Code “adopts the philosophy of the [Restatement (Third) of Trusts Section 25] that the rules applicable to trusts ought to be the same [as those applied to wills], whatеver those rules might be.” Id. The Orphans’ Court inferred “that our General Assembly intended to place revocable inter vivos trusts on an equal footing with testamentary instruments and afford pretermitted spouses with an opportunity to claim an intestate share-of said trusts.” O.C.O. at 10. The court concluded that, by enacting Section 7710.2 with the ULC, the General Assembly, “became one of the ‘few legislatures’ to extend the rules of construction to revocable inter vivos trusts, by importing [Subs]ection 2507(3)’s spousal protections for pretermitted. spouses.” Id. at 11.
The Orphans’ Court further found that the General Assembly “implicit[ly] accepted] the concept that statutory policy as ' to pretermitted heirs[
Notwithstanding the superficial technicality of this analysis, the thrust of it is straightforward. Subsection 2507(3) reflects a legislative presumption as to the intent of a testator who failed to account for certain events that post-dated execution of his will — in this case, a post-execution
Upon review, the Superior Court largely adopted the Orphаns’ Court’s reasoning. It, too, recognized Subsection 2507(3) as a "rule of construction” subject to Section 7710.2’s direction that “the rules of construction that apply ... to the provisions of testamentary trusts also apply as appropriate to the provisions of inter vivos trusts.” See In re Trust Under Deed of Kulig,
The court found the following Section 7710.2 commentary particularly convincing:
The revocable trust is used primarily as a will substitute, with its key provision being the determination of the persons to receive the trust property upon the settlor’s death. Given this functional equivalence between the revocable trust and'a will, the rules for interpreting the disposition of property at death should be the same whether the individual has chosen a will or revocable trust as the individual’s primary estate planning instrument. Over the years, the legislatures of the States and the courts have developed a series of rules of construction reflecting the legislative or judicial understanding of how the average testator would wish to dispose of property in cases where the will is silent or insufficiently clear....
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Rules of construction attribute intention to individual donors based on assumptions of common intention.... Rules of constmetion can also concern assumptions as to how a donor would have revised donative documents in light of certain events occurring after execution.
20 Pa.C.S. § 7710.2, ULC (emphasis added).
The court concluded that, in enacting Section 7710.2, the General Assembly “intended the rule of construction employed to ascertain a decedent’s intent in connection to a pretermitted spouse be applied to inter vivos trusts.” Kulig Trust,
Children filed a Petition for Allowance of Appeal. We granted review in order to consider whether the Superior Court erred in construing Section 7710.2 by reference to the commentary while deeming that provision unambiguous — and by extension whether the Superior Court erred in ruling that Section 7710.2 compelled inclusion of the Trust in the Estate subject to .the pretermitted spousal share. In re: 'Trust Under Deed of Kulig,
We review this question of statutory interpretation de novo, and the scope of our review is plenary. Trust Under Agreement of Taylor,
The purpose of statutory interpretation is to ascertain the General' Assembly’s intent and to give it effect. 1 Pa.C.S. § 1921(a). In discerning' that intent, courts first look to the language of the statute itself. If the language of the statute clearly and unambiguously sets forth the legislative intent, it is the duty of the court to apply that intent and not look .beyond the statutory language to ascertain its meaning. See 1 Pa.C.S. § 1921(b).... Courts may apply the rules of statutory construction only when the statutory language is not explicit or is ambiguous. 1 Pa.C.S. § 1921(c). '
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.We must read all sections of a statute “together and in conjunction with each other,” construing them “with reference to the entire statute.” 1 Pa.C.S. § 1922(2). When construing one section of a statute, courts must read that section not by itself, but with reference to, and in light of, the other sections.
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Parts of a statute that are in pari mate-ria, i.e., statutory section's that relate to the same persons or things or the same class of persons and things, are to be construed together, if possible, as one statute. 1 Pa.C.S. § 1932. If they can be made to stand together!,] effect should be given to both as far as possible. In ascertaining legislative intent, statutory language is to be interpreted in context, with every .statutory section read together and in conjunction with the remaining statutory language, and construed with reference to the entire statute as a whole. We must presume that in drafting the statute, the General Assembly intended the entire statute, including all of "its provisions, to be effective. 1 Pa. C.S. § 1922. Importantly, this presumption requires that statutory sections are not to be construed in such a way that One section operates to nullify, exclude or cancel .another, unless the statute expressly says so.' '
Id. at 1155-57 (citations and internal quotation marks omitted),
Central to the arguments of the parties is-the well-settled principle that, when official comments to statutes were before the legislature at the time of enactment and are appended to the statutory text, we may treat them as evidence of legislative intent. 1 Pa.C.S, § 1939; see Bricklayers of W. Pa. Combined Funds, Inc. v. Scott’s Dev. Co.,
We first must address whether, when a statute is clear and unambiguous, it is inappropriate to consider the,commentary to the rule, as the Superior Court did in this case. The parties provide limited focused argument.on this point, but the underlying principles are straightforward.
Section 1939 provides in full:
The comments or report of the commission, committee, association or other entity which drafted a statute may be consulted in the construction or application of the original provisions of the statute if such сomments or report weré published or otherwise generally available prior to the consideration of the statute by the General Assembly, but the text of the statute shall control in the event of conflict between its text and such comments or report.
1 Pa.C.S. § 1939 (emphasis added). Thus, on its face, Section 1939 contains no explicit caveat regarding the principle’s application when the statutory language is unambiguous. However, as a matter of logic and by necessary implication, the.answer must be that Section 1939 is relevant only when the statute is unclear.
As set forth in Taylor Trust and Martin Estate, we may not rely upon our various tools of statutory construction when the text of the statute, itself, is plain. In Taylor Trust, .we acknowledged that Section 1939 contains no express limitation on its application to instances of ambiguity. We emphasized -nonetheless that, “if the relevant statutory language is free of ambiguity, resort to [S]ection 1939 would be unnecessary.”
Turning to the effect of Section 7710.2 upon the law protecting pretermitted spouses, we have the-benefit of thorough, erudite briefs from both parties. .They examine the common law, the long evolution of the PEP Code, the introduction of uniform codes into Pennsylvania’s statutory law, and the ramifications of the General Assembly’s 2006 addition of Section 7710.2 to the Uniform Trust Code. While these analyses are illuminating, they prove too much, because the parties concur on a point that significantly simplifies -the case. Specifically, the parties agree — correctly in our view — that, at least until 2006, Sections 2203 and ,2507 operated independently, such that Section 2507’s pretermitted share applied only to the intestate estate commonly understood as excluding any property “not effectively disposed of by will or otherwise.” See 20 Pa.C.S. § 2101(a).
Hence, inter vivos trusts, which are among assets “disposed of ... otherwise,” lay outside the reach of the. intestate estate at least until the enactment of Section 7710.2. Before 2006, the only way a surviving
The sole point of disagreement, then, concerns whether the General Assembly’s enactment of Section 7710.2 was intended to change what long had been the status quo by extending the scope of a Subsection 2507(3) estate,, defined by reference to an intestate estate, to encompass inter vivos trusts — this, despite, the fact that suсh a trust is addressed textually only in. Subsection 2203(a)(3). In addressing whether a given enactment changes pre-existing law, we proceed cautiously. “Statutes are never presumed to make any innovation in the rules and principles of the common law or prior existing law beyond what is expressly declared in their provisions.” Hahn v. Hess, 378 Pa, 264,
As a threshold matter, we, disagree with the Superior Court to the extent that it found that the statutory provisions here at issue are unambiguous when read in their full context. Whether a statute
A statute is ambiguous when there are at least two reasonable interpretations of the text. In construing and giving effect to the text, “we should not interpret statutory words in isolation, but must read them with reference to the context in which they appear.” Roethlein v. Portnoff Law Assoc.,623 Pa. 1 ,81 A.3d 816 , 822 (Pa. 2013) (citing Mishoe v. Erie Ins. Co.,573 Pa. 267 ,824 A.2d 1153 , 1155 (Pa. 2003)); accord Commonwealth v. Office of Open Records,628 Pa. 163 ,103 A.3d 1276 , 1285 (Pa. 2014) (party’s argument that statutory language is ambiguous “depends upon improperly viewing it in isolation;” when language is properly read together and in conjunction with rest of statute, legislative intent is plain). The United States Supreme Court also takes a contextual approach in assessing statutes and in determining predicate ambiguity. See generally King v. Burwell, — U.S. -,135 S.Ct. 2480 , 2489,192 L.Ed.2d 483 (U.S. 2015) (“If the statutory language is plain, we must enforce it according to its terms. But oftentimes the meaning — or ambiguity — of certain words or phrases may only become evident when placed in context. So when deciding whether the language is plain, we must read the words in their context and with a view to their place in the overall statutory scheme.” (internal quotation marks and citations omitted)); Yates v. United States, — U.S. -,135 S.Ct. 1074 , 1081-82,191 L.Ed.2d 64 (U.S. 2015) (“Whether a statutory term is unambiguous, however, does not turn solely on dictionary definitions of its component words. Rather, ‘[t]he plainness or ambiguity of statutory language is determined [not only] by reference to the language itself, [but as well by] the specific context in which that language is used, and the broader context of the statute as a whole.’ Ordinarily, a word’s usage accords with its dictionary definition. In law as in life, however, the same words, placed in different contexts, sometimes mean different things.” (internal citations omitted)).
A.S. v. Pa. State Police,
It is materially undisputed that Subsection 2507(3) is a rule of construction that imputes a will modification based upon the presumed intent of the testator, absent evidence to the contrary, not to disinherit а spouse or child whose arrival post-dated the will’s execution. One might reasonably read Section 7710.2 as introducing the re-buttable presumption established in Section 2507 into the context of inter vivos trusts. However, viewed in its full context, including Section 2203, which long has been recognized as providing protections for omitted spouses that are distinct from those provided for pretermitted spouses and which reach certain inter vivos transfers, it also is reasonable to conclude that the legislature omitted to mention inter vivos trusts in Subsection 2507(3) and the provisions incorporated therein for a reason, given that it specifically addresses them in Section 2203. Thus, there are competing, reasonable readings of the content and intended effect of Section 7710.2. Accordingly, we must rely upon the array of tools that we use to construe an ambiguous statute, including the commentary to Section 7710.2 pursuant to 1 Pa.C.S. § 1939.
Recognizing that the PEF Code is an elaborate machine with many moving parts, we begin by addressing whether Sections 2203 and 2507 must be read in pari materia. Children argue that each of those provisions reflects the legislature’s intent to protect surviving spouses from
In contrast to [Subs]ection 2507(3), the Section 2203 spousal election provision is not a rule of construction. The former is a construction applied in the absence of contrary intent to provide for a surviving spouse based on the presumption that a decedent did not intend to omit the surviving spouse from his or her testamentary decisions. The latter is a right of a surviving spouse available notwithstanding any contrary intent of the decedent to protect against disinheritance. In recognition of the “functional equivalence” between inter vivos trusts and testamentary dispositions, the [legislature in adopting Section 7710.2 merely sought to impose consistency on the construction of such instruments. Accordingly, there is little reason to treat a decedent’s presumed intent differently when considering his will or his inter vivos trust. The fact that surviving spouses retain other rights independent 'of that intent is irrelevant. Therefore, it is unnecessary to read Section 7710.2 in pari materia with Section 2203, because they relate to different concerns.
Kulig Trust,
Both sections reflect modern embodiments of centuries-old protections designed to ensure that surviving spouses are not left' destitute by their departed spouses by design or neglect. See Schwartz’ Estate,
In interpreting these statutes, we also must consider “the object to be attained” by the statute; “the former law, if any, including other statutes upon the same or similar subjects”; and “the consequences of a particular interpretation.” 1 Pa;C.S. § 1921. In doing so, we presume that the General Assembly does not intend an absurd or' unreasonable result and that the legislature intends that all provisions have effect. 1 Fa.C.S. § 1922.
We begin with what is undisputed: Nothing in the text of Section 7710.2 or the commentary thereto expresses any specific legislative intent to change the pre-2006 framework for providing for pre-termitted spouses and spouses otherwise deprived of the legislatively-determined minimum share of the deceased spouse’s assets reflected in Section 2203’s formula. Notably, the commentary to another Uniform Trust Code section clearly indicates the legislature’s intention to disturb prior law on other topics. See 20 Pa.C.S. § 7752 (providing in the 2005 Joint State Government Committee Comment that “subsеction (a) reverses prior Pennsylvania law and presumes that a trust created after the effective date of this chapter is revocable unless the trust instrument provides that it shall not be,” in.direct contradiction of prior law recognized in Biggins v, Shore,
It also is noteworthy that the language employed by Section 7710.2 is consistent with prior precedent, suggesting a codification,-rather, than a modification, of longstanding interpretive law. In Matter of Tracy, ;
That being said, the commentary to Section 7710.2 complicates- this reference to “provisions” in drawing a distinction between “constructional preferences” and “rules of construction.” The former, the commentary suggests, are “general in nature,”
Nonetheless, in all of this, the closest thing Children can identify to an affirmative indication of legislative intent substantially to change the undisputed pre-2006 status quo is the commentary’s general acknowledgment that revocable trusts commonly are used as an alternative to probate. Courts and legislatures long have recognized that trusts may be used in this fashion. Indeed, we addressed the phenomenon as long ago as 1887. See Dickerson’s Appeal,
The broader consequences and questions implicated by Wife’s approach, consequences the lower courts neglected to consider, further chip away at the lower courts’ rulings. Because the lower courts’ and Wife’s interpretation of Section 7710.2 relies solely upon the importation of Section 2507’s rule of construction into a court’s reading of an inter vivos trust thе share due a pretermitted spouse, it necessarily excludes pretermitted spousal share access to the other categories of assets delineated by Section 2203. Thus, while a pretermitted spouse would be entitled to include an inter vivos trust in the preter-mitted spousal share, she could not do so with property conveyed by the decedent to others with a right of survivorship, such as payable-on-death or transferable-on-death accounts, annuities, and so on. Thus, Wife’s account requires us to infer the addition of one financial device a decedent might have employed to isolate assets from his spouse while excluding numerous other devices that might be employed to the same end.
Nor does this exhaust the problematic implications of the Superior Court’s and Wife’s account. Notably, the ULC states that Section 7710.2 “is patterned after Restatement (Third) of Trusts Section 25(2) and comment e (Tentative Draft No. 1, approved 1996), although this section, unlike the Restatement, also applies to irrevocable trusts.” 20 Pa.C.S. § 7710.2, ULC (emphasis added). Thus, taking the commentary at face value, as the lower courts did in every other regard, their reasoning would appear also to apply to irrevocable trusts, including charitable ones, subjecting the corpora of such trusts to the pre-termitted spousal share. The consequences
If we understand correctly, Wife would take considerably more through pretermission than she would through election if her view were to prevail. See swpra n.9. ■ Implicit in Wife’s view is that to deny her these assets is fundamentally unfair and contrary to the General Assembly’s intent in enacting Section 7710.2. But Wife does not dispute that she would have had no such pretermitted spousal claim to the inter vivos trust under the pre-2006 law, which prevailed in materially the same form for sixty years and was implicitly reaffirmed each time the Legislature revisited the PEF Cbde without modifying this aspect of the Code’s operation. Nor does she account for the methods that- a decedent might apply to effectuate the same end that are unaffected by her proposed reading of Section 7710.2.
The law is clear that the General Assembly “has the power to enact all manner of legislation with respect to’wills and trusts subject, of course, to the rights and limitations ordained in the Constitution of the United States and the Constitution of Pennsylvania,” neither of which are implicated in this case. In re Scott,
Conversely, where a decedent has, during his lifetime, shifted substantial assets outside the reach of probate, such that one half of the would-be intestate estate that remains has less value than one third of the assets comprising the alternative elective 'share (including the probate estate, itself, it bears noting
Regardless of the advisability of this approach, reading the PEF Code as a whole in this fashion provides a plausible explanation for the fact that the shares differ in some particulars — an explanation that recognizes the preservation of the .same remedial ends. Against this backdrop, we cannot reasonably infer from the General Assembly’s enactment of Section 7710.2 that the provision was intended to substantially revise this long-standing distributive scheme .absent clear indications to that effect. It is a necessary corollary of judicial reluctance to intrude upon legislative prerogatives that we will find legislative intent to effectuate a substantial change to time-honored legal principles only when it is expressed clearly and unmistakably or, at least, follows by necessary implication from the statutory text. Neither Wife nor the lower courts have satisfied that stringent standard. ■ «
Accordingly, we reverse the Superior Court’s order affirming the Orphans’ Court’s decree declaring that the Trust should be considered to be part of the pretermitted spousal share under the circumstances presented, and we remand for proceedings consistent with this Opinion.
Justices Todd and Dougherty join the opinion.
Chief Justice Saylor files a dissenting opinion in which Justice Baer joins.
Justices Donohue and Mundy did not participate in the consideration or decision of this case.
Notes
. See, e.g., In re Schwartz’ Estate,
. An in-depth review of this history would exceed the scope of this Opinion, However, there is an extensive body of literature on that history. See, e.g., Terry L. Tumipseed, Community Property v. The Elective Share, 72 La. L. Rev. 161, 163-69 (2011). Professor Turnip-seed suggests that principles resembling dower and curtesy can be traced back over 4,000 years to the Code of Hammurabi. See Terry L, Turnipseed, Why Shouldn’t I Be Allowed to Leave My Property to Whomever I Choose at my Death (or How I Learned to Stop Worrying and Start Loving the French), 44 Brandéis L.J. 737, 742 n.33 (2006) (discussing provisions pertaining to the inheritance of land as between son and wife based upon thе ability to maintain it in service of feudal obligations while the husband is away serving the King in war); cf. Janet Loengard, Interpretation and Re-interpretation of a Clause: Magna Carta and the Widow's Quarantine, 25 Wm. & Mary Bill of Rts, J. 403 (2016) (examining the relationship between the common-law doctrine of quarantine, which protected a widow's right to remain in the marital residence for a period of time pending assignment of her dower).
. Act of June 30, 1972, P.L. 508, No. 164 (codified as amended 20 Pa.C.S. §§ 101 et seq.).
. "A child or spouse who has been omitted from a will, as when a testator makes a will naming his or her two children and then, sometime later, has two more children who are not mentioned in the will.” Heir, preter-mitted heir, Black’s Law Dictionary 841 (10th ed. 2014).
. Code provisions, of course, apply equally without regard to sex or gender of any spouse whom they affect. Throughout this Opinion, we use the female pronoun as a convenience, reflecting the sex of the surviving spouse in this case.
. See 20 Pa.C.S. § 7710.2 (“The rules of construction that apply in this Commonwealth to the provisions of testamentary trusts also apply as appropriate to the provisions of inter vivos trusts.”).
. "If the testator marries after making a will, the surviving spouse shall receive the share of the estate to which [s]he would have been entitled had the testator died intestate, unless the will shall give [her] a greater share or unless it appears from the will that the will was made in contemplation of marriage to the surviving spouse.” 20 Pa.C.S. § 2507(3).
. In relevant part, Subsection 2102(4) defines the intestate share for purposes of Subsection 2507(3) as follows: "If there are surviving issue of the decedent one or more of whom are not the issue of the surviving spouse, one-half of the intestate estate.” 20 Pa.C.S. § 2102(4).
. Children note that, if their view prevails, which undisputedly is consistent with the law at least until 2006, Wife may opt to take $2,287,867.33 (the elective share, offset by the $1.5 million ERISA plan to which she is entitled in any scenario) or $2,553,208.63 (the pretermitted spouse share). Under Wife’s view, which was adopted by the lower courts, the elective share would remain the same, but the pretermitted share would increase to $4,181,801.00, reflecting the addition of a one-half share of the revocable inter vivos trust at issue to the estate used to calculate the pretermitted share, which by virtue of being included in the pretermitted spousal share would not be subject to the offset for the ERISA plan that applies in the context of a spousal election. See Brief for Children at 49.
.See the Declaratory Judgments Act, Act of July 9, 1976, P.L. 586, No. 142, § 2 (codified as amended, 42 Pa.C.S. §§ 7531 etseq.).
. See generally Nathaniel W. Schwickerath, Note, Public Policy & the Probate Pariah: Confusion in the Law of Will Substitutes, 48 Drake L. Rev. 769, at 785-96 & n.104 (2000) (discussing payable-on-death accounts, transfer-on-death registries for stocks and'bonds, and life insurance, inter alia, as will substitutes, and citing In re Estate of Stevenson,
. Section 2507 also includes provisions governing other post-execution events warranting presumptions of subsequent intent, including the treatment of spouses named in a will who were divorced from decedents before death, provision for children by birth or adoption, and excluding a slaying spouse from taking under a spousal victim’s will. See 20 Pa.C.S. § 2507.
. "A trust that is not testamentary is not subject to the formal requirements of '§ 17 [‘Creation of Testamentary Trusts'] or to prоcedures for the administration of a decedent’s estate; nevertheless, a trust is ordinarily subject to substantive restrictions on testation and to rules of construction and other rules applicable to testamentary' dispositions, and in other respects the property of such a trust is ordinarily treated as though it were owned by the settlor.” Restatement (Third) of Trusts § 25(2).
. See also Roberta Rosenthal Kwall, Anthony J. Aiello, The Superwill Debate: Opening the Pandora’s Box?, 62 Temp. L. Rev. 277, 297 (1989) (noting that historically “courts treating the claims of pretermitted heirs have not been particularly willing to void inter 'vivos transfers of assets in order to increase the pretermitted heir’s intestate share”); id. at 300 (noting that pretermitted heirs, i.e., non-spouses, do not have the same protection against disinheritance by inter vivos transfers that spouses do through the, spousal election).
. Section 2203 entitles a spouse to claim against "(property passing from the decedent by will or intestacy” as well as the following assets:
(2) Income or use for the remaining life of the spouse of property conveyed by the decedent during the marriage to the extent that the decedent аt the time of his death had the use of the property or an interest in or power to withdraw the income thereof,
(3) Property 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.
(4) Property conveyed by the decedent during the marriage to himself and another or others with right of survivorship to the extent of any interest in the property that the decedent had the power at the time of his death unilaterally to convey absolutely or in fee.
(5) Survivorship rights conveyed to a beneficiary of an annuity contract to. the extent it was purchased by the decedent during the marriage and the decedent was receiving annuity payments therefrom at the time of his death.
(6) Property conveyed by the decedent during the'marriage and within one year of his deáth to the extent that the aggregate amount so conveyed to each done exceeds $3,000, valued at the time of conveyance. In construing this subsection, a power in the decedent to withdraw income or principal, or a power in any person whose interest is not adverse to the decedent to distribute to or use for the benefit of the decedent any income or principal, shall be deemed to be a power in the decedent to withdraw so much of the income or principal as is subject to such power, even though such income or principal may be distributed only for support or other particular purpose or only in limited periodic amounts.
20 Pa.C.S. § 2203(a).
. See Marcus, supra n.ll, at 864-65 (identifying four main types of "will substitutes": life insurance policies, pensions, revocable living trusts, and multiple-party or joint accounts, all of which are substantially recognized as subject to the elective share under Section 2203, and only one of which would be imported into the pretermitted spousal share under the lower courts’ account of Section 7710.2).
. Children argue that this potential consequence of the lower court’s decisions would confound the General Assembly’s prior intent to preclude precisely this result. In In re Estate of Behan,
. Given the range of assets subject to election that are excluded from the pretermitted spousal share, there will be circumstances not involving inter vivos trusts whereunder the ■ elective share is more lucrative than the pre-termitted spousal share, and this would be true even if we affirmed the Superior Court’s decision, given the many other non-probate assets subject to election.
Dissenting Opinion
DISSENTING
I agree, in substantive part, with the analyses and conclusions of the orphan’s court and the Superior Court, namely that, with respect to Section 7710.2 of the Probate, Estates and Fiduciaries Code, see 20 Pa.C.S. § 7710.2, the enactment of this model law provision plainly reflects the Legislature’s- intention for . inter vivos trusts to be construed the same as testamentary trusts, including the protections for pretermitted spouses pursuant to Section 2507(3), see id. § 2507(3).
To the degree that Section 7710.2 may be .viewed as ambiguous, as the majority concludes, see Majority Opinion, at 232-33, resort to the commentary is appropriate to determine the intention of the General Assembly. See 1 Pa.C.S. § 1939«(“Use of comments and reports”); accord 20 Pa. C.S., Ch. 77, Refs & Annos, Jt. St. Govt. Comm. Comment — 2005 (“These comments may be used in ■ determining the intent of the General Assembly. See 1 Pa. C.S. § 1939 and In re Martin’s Estate, .
Given this commentary-incorporated reasoning and the express cross-reference to the pretermitted spousal section, I remain unpersuaded that the Legislature was required to enact a point-by-point codification of all the rules of construction it sought to apply to inter vivos trusts, rather than proceed via the broad provision of Section 7710.2. Compare Majority Opinion, at 236 (“[T]he fact that the legislature declined expressly to identify the effect that Wife imputes to Section 7710.2 pró-vides powerful evidence that the General Assembly did not intend it.”), with 20 Pa. C.S. § 7710.2, Uniform Law Comment (“Instead of enacting this section, a jurisdiction ... may wish to enact detailed rules on the construction of trusts .... ” (emphasis added)). Accordingly, I respectfully dissent.
Justice Baer joins this dissenting opinion.