Re: Trust Under Deed of D. Kulig; Apl of Budke (majority)Annotate this Case
At issue before the Pennsylvania Supreme Court was a matter of first impression: 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. 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 Appellee Mary Jo Kulig. Since the will had been executed before his second marriage, it made no provision for Kulig, 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 Kulig, Decedent died, survived by Kulig and by appellants (his children), Carrie Budke and James Kulig. By the terms of the Trust, if Joanne predeceased Decedent, the balance of the Trust corpus was to be divided and distributed to Children according to the Trust’s terms. Kulig undisputedly was entitled upon Decedent’s death to an ERISA benefit plan. The parties stipulated that Kulig, a pretermitted spouse under Pennsylvania law, was entitled to receive the same share of Decedent’s estate to which she would have been entitled had he died intestate. The Children filed a petition for declaratory judgment before the Orphans’ Court seeking a declaration that the Trust was excluded from Kulig’s pretermitted spousal share. Kulig opposed the petition, arguing primarily that, in calling for the application of the same interpretive principles to trusts that apply to wills, Section 7710.2 of the Code established that inter vivos trusts, like other assets, must be considered part of the intestate estate for purposes of calculating the pretermitted share. The Superior Court held Section 7710.2 mandated application to the Trust of the same presumption applicable to the will under Subsection 2507(3). Accordingly, the estate comprising the pretermitted spousal share necessarily included the Trust corpus. The Supreme Court reversed the Superior Court’s determination that the revocable inter vivos trust at issue should have been included in Decedent’s estate for purposes of discerning the pretermitted spouse’s statutory entitlement under 20 Pa.C.S. 2507.