Rights of Surviving Spouse in Connecticut

Rights of Surviving Spouse - 1

Connecticut Judicial Branch

Law Libraries

Rights of Surviving Spouse

in Connecticut

A Guide to Resources in the Law Library

Table of Contents

Introduction .................................................................................................... 3

Section 1: Statutory Share in Connecticut ........................................................... 5

Table 1: Statutory Share .............................................................................. 16

Section 2: Intestate Share in Connecticut .......................................................... 18

Table 3: Avoiding Intestate Share ................................................................. 25

Section 3: Insolvent Estate .............................................................................. 26

Section 4: Support during Settlement of the Estate ............................................ 28

Section 5: Inchoate Rights .............................................................................. 32

See Also: Property law and family law research guides on the Connecticut Judicial

Branch Law Libraries website at http://www.jud.ct.gov/lawlib/selfguides.htm.

Prepared by Connecticut Judicial Branch, Superior Court Operations,

Judge Support Services, Law Library Services Unit

lawlibrarians@jud.ct.gov

2024 Edition

Rights of Surviving Spouse - 2

These guides are provided with the understanding that they represent only a

beginning to research. It is the responsibility of the person doing legal research to

come to his or her own conclusions about the authoritativeness, reliability, validity,

and currency of any resource cited in this research guide.

View our other research guides at

https://jud.ct.gov/lawlib/selfguides.htm

This guide links to advance release opinions on the Connecticut Judicial Branch website

and to case law hosted on Google Scholar and Harvard’s Case Law Access Project.

The online versions are for informational purposes only.

References to online legal research databases refer to in-library use of these

databases. Remote access is not available.

Connecticut Judicial Branch Website Policies and Disclaimers

http://www.jud.ct.gov/policies.htm

Rights of Surviving Spouse - 3

Introduction

A Guide to Resources in the Law Library

• “Connecticut law does not permit a deceased person to continue to own

property. The statutes of this state set forth a procedure for the orderly transfer

of a deceased person's assets either according to his will or the laws of

intestacy. See e.g., Connecticut General Statutes §§ 45a-273, et seq. Under

the laws of this state competent testators are free to leave their property as

they wish, subject only to the limitations of a spousal elective share and a

family allowance. Connecticut General Statutes §§ 45a-320, 45a-321, 45a-

436.” Skindzier v. Commissioner of Social Services, No. 0501376 (Conn. Super.

Ct., New Britain, Jan. 4, 2001), 28 Conn. L. Rptr. 589 (March 5, 2001), 2001

WL 51663. [Decision affirmed on appeal 258 Conn. 642, 784 A.2d 323].

• Right of Election: “On the death of a spouse, the surviving spouse may elect,

as provided in subsection (c) of this section, to take a statutory share of the

real and personal property passing under the will of the deceased spouse…”

Conn. Gen. Stat. § 45a-436(a) (2023).

• Statutory share: “…means a life estate of one-third in value of all the property

passing under the will, real and personal, legally or equitably owned by the

deceased spouse at the time of his or her death, after the payment of all debts

and charges against the estate. The right to such third shall not be defeated by

any disposition of the property by will to other parties.” Conn. Gen. Stat. § 45a-

436(a) (2023).

• Validity of premarital or post-nuptial agreements: “The provisions of this

section with regard to the statutory share of the surviving spouse in the

property of the deceased spouse shall not apply to any case in which, by

written contract made before or after marriage, either party has received from

the other what was intended as a provision in lieu of the statutory share.”

Conn. Gen. Stat. § 45a-436(f) (2023).

• Effect of dissolution, divorce, or annulment: Such event “shall revoke any

disposition or appointment of property made by the will to the former spouse

…unless the will expressly provides otherwise. Property …shall pass as if the

former spouse failed to survive the testator, and other provisions conferring

power or office on the former spouse shall be interpreted as if the spouse failed

to survive the testator […] If provisions of the will of the testator are revoked

solely by this section, such provisions shall be revived by the testator's

remarriage to the former spouse. A decree of separation which does not

terminate the status of husband and wife is not a dissolution or divorce for the

purposes of this section.” Conn. Gen. Stat. § 45a-257c (2023).

• “Merger of civil union into marriage by action of the parties. (a) On and

after April 23, 2009, and prior to October 1, 2010, two persons who are parties

to a civil union entered into pursuant to sections 46b-38aa to 46b-38oo,

inclusive, may apply for and be issued a marriage license, provided such

persons are otherwise eligible to marry under chapter 815e and the parties to

the marriage will be the same as the parties to the civil union.” Conn. Gen.

Stat. § 46b-38qq (2023).

Rights of Surviving Spouse - 4

• “Merger of civil union into marriage by default. Exception. (a) Two

persons who are parties to a civil union established pursuant to sections 46b-

38aa to 46b-38oo, inclusive, that has not been dissolved or annulled by the

parties or merged into a marriage by operation of law under section 46b-38qq

as of October 1, 2010, shall be deemed to be married under chapter 815e on

said date and such civil union shall be merged into such marriage by operation

of law on said date. Conn. Gen. Stat. § 46b-38rr (2023).

Rights of Surviving Spouse - 5

Section 1: Statutory Share in Connecticut

A Guide to Resources in the Law Library

SCOPE:

Bibliographic resources relating to the surviving spouse's

statutory share of real and personal property despite provisions

in a will. Also, legal arrangements by which statutory share may

legally be avoided.

TREATED

ELSEWHERE:

• If there is no will—see § 2 Intestate share

• If estate is insolvent—see § 3 Insolvent estate

DEFINITIONS:

• “Under a will, a spouse need only claim the spousal share if

disinherited . . . .” Bezzini v. Department of Social Services,

49 Conn. App. 432, 443, 715 A.2d 791 (1998).

• Dower and curtesy: “By and large, dower and curtesy

have been supplanted by laws that entitle a surviving spouse

to choose between accepting whatever is provided for the

spouse in the decedent’s will or taking a statutorily fixed

percentage of the estate.” Estate of Herrmann v.

Commissioner of Internal Revenue, 85 F.3d 1032, 1034-35

(2d Cir. 1996).

STATUTES:

• Conn. Gen. Stat. (2023).

§ 45a-436. Succession upon death of spouse. Statutory

share - see Table 1.

§ 45a-347. Beneficiary designation exempt from laws

governing transfer by will.

PROBATE

COURT RULES

OF PROCEDURE:

• Probate Court Rules of Procedure (2022)

Rule 38. Fiduciary Accounting: Requirements for Accounts

§ 38.1 When principal and income to be reported separately

CASES:

• In re: Estate of Bilo, Superior Court, Judicial District of

Hartford, No. CV 16-6070150 (August 14, 2017) (2017 WL

4273980). “On June 16, 1999, the decedent executed his

last will and testament (the will) and the trust. Pursuant to

the will, the decedent left the rest, residue, and remainder of

his estate to the trust. Upon the decedent’s death, the trust

would create two sub-trusts- the marital trust and the estate

tax sheltered trust (sheltered trust)…The plaintiff claims that

the Probate Court erred in failing to include the trust assets

in the decedent’s estate for the calculation of the plaintiff’s

statutory share.”

• Dinan v. Patten, 317 Conn. 185, 116 A. 3d 275 (2015). “The

present case requires us to consider the method by which

General Statutes § 45a–436 (spousal share statute) requires

You can visit your

local law library or

search the most

recent statutes and

public acts on the

Connecticut General

Assembly website.

Once you have

identified useful

cases, it is important

to update the cases

before you rely on

them. Updating case

law means checking

to see if the cases are

still good law. You

can contact your local

law librarian to learn

about the tools

available to you to

update cases.

Rights of Surviving Spouse - 6

a surviving spouse's statutory share to be calculated”

(p.188)

“We hold that the trial court properly concluded that: (1) the

doctrines of waiver, estoppel and election of remedies do not

bar the plaintiff from seeking her statutory share; (2)

because state and federal estate taxes are not “debts and

charges against the estate” pursuant to the spousal share

statute, the statutory share should be calculated prior to the

subtraction of taxes from the value of the estate; General

Statutes § 45a–436 (a); (3) the value of the statutory share

should be calculated based on the value of the estate as of

the date of the final accounting in anticipation of distribution,

rather than the value of the estate at the time of the

decedent's death; (4) with respect to the period prior to the

date when her statutory share is set out, the plaintiff is

entitled to the average yield of one third of the estate during

that time; and (5) the trial court properly concluded that the

Probate Court properly appointed distributors to set out the

plaintiff's statutory share” (pp. 193-194).

• Dix v. Dix, Superior Court, Judicial District of New Britain,

No. CV13-6019033 (Feb. 9, 2015) (2015 WL 897581).

“It is clear to the court that the intention of Dennis Dix, as

manifested by the ‘precise wording’ of his will, was to

disinherit his surviving spouse, Kathleen Dix, save for the

bequest of five dollars. He stated his reason for doing so in

the will when he described her as having ‘abandoned’ him.

[FN6]. His intent was made even clearer when he

‘begrudgingly’ agreed that, if state law required him to leave

her a sum in excess of five dollars, the amount could be

increased to comply with that law. There is no Connecticut

statute that requires a spouse to leave any set amount, or

any amount at all, to his surviving spouse.” (p. 3)

---

“Until 2013 a surviving spouse had to file an election to take

the share of her husband’s estate granted her by § 45a-436

within 150 days of the appointment of the first fiduciary for

the estate. In this case the first fiduciary was appointed on

April 7, 2010. Thus, the plaintiff’s election to take her

statutory share had to be filed by September 5, 2010. An

election submitted on July 6, 2012 is too late by far.” (p. 5)

---

“…The court notes that in Connecticut abandonment, without

sufficient cause, is grounds for denying a surviving spouse

not only her intestate share but also her statutory share of

the deceased spouse’s estate. See General Statutes § 45a-

436(g).” (n.6)

• Dinan v. Patten, Superior Court, Judicial District of

Waterbury, Nos. CV09-4023634, CV10-6009819, CV11-

6012933, CV12-6016447 (March 20, 2013) (2013 WL

1493031). “Judge Caruso in his decision…dealt in Question

Rights of Surviving Spouse - 7

One with how to determine the base for the statutory share.

Judge Caruso determined that the only authority in

Connecticut for what is and is not to be deducted in

determining a statutory share was Cranley v. Schirmer, 27

Conn. Sup. 258, 236 A.2d 332 (1967), which held that

federal and state death taxes were not deductible in

calculating the statutory share.”

“…the Cranley court determined that a widow’s elective

share ‘is to be computed before deduction of the Connecticut

succession and estate taxes and all other taxes, but her

statutory share is to be charged with that portion of taxes

allocable thereto.’ Cranley v. Schirmer, 27 Conn. Sup. at

267.” (p. 13)

• Sandford v. Metcalfe, 110 Conn. App. 162, 168-170, 954

A.2d 188 (2008). “The law governing descent and

distribution emanates from the legislature and is purely

statutory…. The legislature has, by statute, carved out

exceptions to the statutes governing descent and distribution

to deprive an ostensibly rightful heir, falling within the ambit

of those exceptions, of an otherwise lawful inheritance.

Under [General Statutes (Rev. to 1985)] § 45-273a (a) [now

§ 45a-436 (g)] a person who, without sufficient cause,

abandons his or her spouse is foreclosed from receiving a

statutory share of the estate of the deceased spouse. Under

[General Statutes (Rev. to 1985)] § 45-279 (a) [now § 45a-

447][fn7] a person finally convicted of murder is precluded

from inheriting any part of the estate of the deceased

victim…." (Citations omitted.) Hotarek v. Benson, 211 Conn.

121, 125-28, 557 A.2d 1259 (1989). There is, however, no

statute barring an attorney who drafted a testamentary

instrument from inheriting by the instrument she drafted.

Because there is no statute barring a distribution to

Sandford, the heirs at law ask us to use our equitable

powers to prevent such a distribution. We cannot do so.

‘Even if the omission of such a statute were the result of

legislative oversight or neglect, we have no power to supply

the omission or to remedy the effect of the neglect…. [A]ny

qualification [of the law of descent and distribution]

pronounced by this court would be a judicial grafting of

public policy restrictions on an explicit statutory provision….

The authorities make clear that judicial tribunals have no

concern with the policy of legislation and they cannot engraft

upon the provisions of the statutes of descent and

distribution an exception to bar an inheritance. . . . The

statutes cannot be changed by the court to make them

conform to the court's conception of right and justice in a

particular case. . . . To avoid trenching on legislative ground,

the court must take the view that if the legislature had

intended such an exception from the statutes as is sought in

this case, it would have said so.” (Citations omitted; internal

Rights of Surviving Spouse - 8

quotation marks omitted.) Hotarek v. Benson, 211 Conn.

121, 128-29, 557 A.2d 1259 (1989).

• In Re: Estate of Jannette H. Scudder, a/k/a Nettie H.

Scutter, 15 Quinnipiac Prob. L.J. 279 (2001). “The mere fact

that a divorce was pending does not create abandonment.

Up to the moment a divorce judge grants a divorce, the

spouses remain married and they continue to have statutory

rights and duties. They are also obligated to one another and

are able, until judgment is entered, to reconcile and remain

married” (p. 287)

• In the Matter of the Estate of Harry A. McQuillen, III, 15

Quinnipiac Prob. L.J. 31 (2000). “The Executor and the

surviving spouse have agreed on the computation of the

elective share..., with funding to be in cash. …What remains

to be determined is the manner of the administration of the

property for the benefit of the surviving spouse during her

lifetime.” (p. 37)

“When one considers the alternative proposed here for

administration of the elective share property, one can only

come to the conclusion that a trust is the answer. After all,

what is an ‘estate which remains open to provide for the

fiduciary management of elective share property?’ The

statutes do not say, the cases do not say, and that means

that nobody, especially the fiduciary and the beneficiary, can

know and comprehend such a hybrid device.” (p. 38)

“…The Court therefore holds that the elective share property

here will be administered through the vehicle of a trust, in

the nature of a testamentary trust, by a trustee the Court

will appoint as follows:.…” (p. 39)

• Elgar v. Elgar, 238 Conn. 839, 840, 679 A.2d 937 (1996).

“Prior to their marriage, they had executed an antenuptial

agreement wherein each party had waived his or her rights

to the other’s property in the event of death or divorce.”

• Dalia v. Lawrence, 226 Conn. 51, 69-70 (1993). “It is

evident, therefore, that surviving spouse’s elective share in

lieu of what he or she would take under a will does not

include the proceeds of a § 36-110(a) account [trust savings

account] , because those proceeds cannot be regarded as

‘passing under a will’ within the meaning of § 45a-436(a).”

• Parniawski v. Parniawski, 33 Conn. Supp. 44, 46, 359 A.2d

719 (1976). “This state has placed its stamp of approval on

a contract entered into in contemplation of marriage in which

each prospective spouse released any claim to the property

owned by the other at the time of the marriage or

thereafter, agreeing that on the death of either, the survivor

should have no claim to his or her property.”

Rights of Surviving Spouse - 9

• Cherniack v. Home National Bank & Trust Co., 151 Conn.

367, n.2, 198 A.2d 58 (1964). “It is true that under § 46-12

a surviving spouse is given a stated interest in all of the

‘property, real and personal, legally or equitably owned by

the other at the time of his or her death.’ But this provision

gives no interest in the property of the other before death.

Since the plaintiff had no right or interest in the property of

the decedent during his lifetime, a valid trust agreement

could not be fraudulent as to her. One cannot be defrauded

of that to which he has no right. Hall v. Hall, 91 Conn. 514,

518, 100 A. 441. (1917)”

• Sacksell v. Barrett, 132 Conn. 139, 145, 43 A.2d 79 (1945).

“Furthermore, since the adoption of the 1877 act, in deciding

whether a widow could by agreement bar her claim to the

share which the statute provides, we said: ‘On principle

there appears to be no good reason why such an agreement,

if fairly made and entered into, by a woman of full age, for

adequate consideration received, should not be binding upon

her.’ Staub’s Appeal, 66 Conn. 127, 134, 33 Atl. 615. The

same holds true of the plaintiff’s agreement releasing his

statutory interest.”

• In re Williamson’s Estate, 123 Conn. 424, 428, 196 A. 770

(1937). “Whether there has been abandonment within this

provision of the statute presented a question of fact to be

determined by the trial court upon evidence offered before

it.”

• Lewis v. Shannon, 121 Conn. 594, 599, 186 A. 540 (1936).

“In the following cases it was held that a surviving spouse,

having elected to take a statutory share instead of a

provision under the will, could not, in addition, take under

statutes of descent which apply only to intestate estates.”

• Farmers’ Loan & Trust Company v. McCarty, 100 Conn. 367,

371, 124 A. 40 (1924). “The widow’s election annuls all

testamentary provisions in her favor, but it does not annul

any testamentary provisions in favor of others . . . . The

result is that the provision of section (b) for setting aside

one quarter to the residue is temporarily suspended, the

provision for the payment of the income of such quarter to

the widow is annulled; and since her statutory life use is not

defeated by remarriage, the provision that upon her

remarriage the corpus of the fund disposed of in section (b)

shall go to the testator’s son Richard, becomes incapable of

execution.”

• Harris v. Spencer, 71 Conn. 233, 237, 41 A. 773 (1893).

“That statute gives a surviving husband a share of the

property owned by his wife at her decease; it does not

prevent the wife during her life from disposing of her

Rights of Surviving Spouse - 10

property in any lawful way she pleases, or incumbering it by

any lawful agreement.”

WEST KEY

NUMBERS:

• Descent and Distribution.

Surviving husband or wife #52-67.

• Marriage and Cohabitation.

Separate property or estate #505.

• Wills.

Election #778-803.

• Dower and Curtesy.

Rights and remedies of surviving spouse #170-173.

DIGESTS:

• West’s ALR Digest Descent and distribution, Thomson West,

2024 (Also available on Westlaw).

Persons Entitled and Their Respective Shares: Surviving

husband or wife

§ 52. Nature of the right in general

§ 53. Constitutional and statutory provisions

§ 62. Estoppel, waiver, or release of right

§ 63. Forfeiture of right

§ 64. Election

§ 65. Right to and necessity for election

§ 67. Operation and effect

• ALR Index: Descent and distribution

Surviving Spouse

ENCYCLOPEDIAS:

• 25 Am Jur 2d Dower and Curtesy, Thomson West, 2014, with

2024 supplement (Also available on Westlaw).

Surviving Spouse’s Rights and Liabilities

In general

§ 29. Priority of dower and curtesy claims as to third

parties

§ 30. Statute of limitations

Assignment of dower or curtsey

§ 31. Generally

§ 32. Estoppel

§ 33. Rights before assignment

§ 34. Tenancies created by assignment; tenancy by the

dower and by the curtesy

§ 35. Valuation of tenancy in dower or curtesy

§ 36. Damages for detention of dower

Alternatives to dower

§ 37. Payments in lieu of dower

§ 38. —Will provisions in lieu of dower; electing against

the will

Quarantine

§ 39. Nature and length of quarantine

§ 40. Purpose

§ 41. Distinction from dower

§ 42. Abandonment of right

§ 43. Property affected

§ 44. Right to and necessity of possession

Encyclopedias and

ALRs are available in

print at some law

library locations and

accessible online at

all law library

locations.

Online databases are

available for

in-library use.

Remote access is not

available.

Rights of Surviving Spouse - 11

• 23 Am Jur 2d Descent and Distribution, Thomson West,

2024, with 2024 supplement (Also available on Westlaw).

Persons who take and their shares; determination of heirs

Surviving spouse

In general

§ 77. Surviving spouse, generally

§ 78. Uniform Probate Code

Circumstances affecting size of spouse’s share

§ 79. Absence of issue, parent or kindred

§ 80. Changes in value after death of intestate; right to

income

§ 81. Debts of intestate; funeral and administration

expenses

§ 82. Conveyances or encumbrances by intestate

§ 83. Property in another state

Effect of misconduct by surviving spouse

§ 84. Generally

§ 85. Desertion, abandonment, or nonsupport

§ 86. —Consensual separation

§ 87. —Separation for cause

§ 88. Adultery

§ 89. Feloniously killing spouse

Effect of marriage incidents; Divorce and separation

§ 90. Void or voidable marriage

§ 91. —Effect of prior institution of annulment

proceedings

§ 92. Remarriage after death of the intestate

§ 93. Bigamous marriage of surviving spouse

§ 94. Divorce

§ 95. —Interlocutory decree

§ 96. Separation agreement

§ 97. —Construction

§ 98. —Effect of reconciliation

• 80 Am Jur 2d Wills, Thomson West, 2013, with 2024

supplement (Also available on Westlaw).

Legacies and Devises; Rights, Duties, and Liabilities of

Beneficiaries

Effect on Distribution of Estate

§ 1386. Components of elective share; expenses

• 28 C.J.S. Dower and Curtsey, Thomson West, 2014 (Also

available on Westlaw).

Dower

§ 1. Generally

§ 2. Nature and object

§ 3. What law governs

§ 4. Extent of dower

§ 5. Inchoate, consummate, and assigned or vested

dower

Requisites to Dower

§ 9. Generally

Rights of Surviving Spouse - 12

§ 10. Marriage

§ 12. Title or seisin of husband

§ 15. Death of husband

Property and Estates or Interests Subject to Dower

§ 16. Lands, tenements, and hereditaments, generally

§ 17. Personal property and choses in action, generally

§ 19. Proceeds of sale of land

§ 21. Proceeds of condemnation of land

§ 24. Estates of inheritance

Priorities

§ 40. Generally

Inchoate right of dower

§ 54. Generally

§ 63. Bar, release, or forfeiture generally

• 13 A.L.R.3d 446, Abandonment, Desertion, Or Refusal To

Support On Part Of Surviving Spouse As Affecting Marital

Rights In Deceased Spouse’s Estate, Annotation, Thomson

West, 1967 (Also available on Westlaw).

• 30 A.L.R.3d 858, Waiver of Right To Widow’s Allowance By

Antenuptial Agreement, by V. Woerner, Annotation.

Thomson West, 1970 (Also available on Westlaw).

• 85 A.L.R.4th 418, Surviving Spouse’s Right To Marital Share

As Affected By Valid Contract To Convey By Will, by David

Carl Minneman, Annotation, Thomson West, 1991 (Also

available on Westlaw).

• 87 A.L.R.6th 495, Validity of Postnuptial Agreements in

Contemplation of Spouse’s Death, by Ann K. Wooster,

Annotation, Thomson West, 2013 (Also available on

Westlaw).

TEXTS &

TREATISES:

• 7 Connecticut Practice Series, Family Law and Practice with

Forms, by Arnold H. Rutkin et. al., Thomson West, 2010 with

2022-2023 supplement (also available on Westlaw).

Chapter 7, Property rights of husband and wife

§ 7:6. Dower and curtesy - In general

§ 7:7. Waiver of statutory share

§ 7:8. Forfeiture of statutory rights

§ 7:9. Effect on lifetime disposition of property

• LexisNexis Practice Guide: Connecticut Probate and Estate

Administration, James I. Dougherty et al., 2023 ed.,

LexisNexis (also available on Lexis).

Chapter 8, Issues relating to surviving spouse

§ 8.04. Determining whether surviving spouse is entitled

to an elective share

§ 8.05. Calculating elective share amount

§ 8.06. Evaluating whether surviving spouse should make

election

§ 8.07. Exercising right of election

Each of our law

libraries own the

Connecticut treatises

cited. You can

our catalog to

determine which of

our law libraries own

the other treatises

cited or to search for

more treatises.

References to online

databases refer to

in-library use of

these databases.

Remote access is not

available.

Rights of Surviving Spouse - 13

§ 8.08. Determining who may exercise elective share on

behalf of incapacitated surviving spouse

§ 8.09. Impact of marriage and divorce on validity of will

§ 8.10. Validity of pre-nuptial and post-nuptial

agreements to settlement of estate

§ 8.11. Validity of divorce and separation agreements to

settlement of estate

§ 8.12. Impact of divorce and separation agreements on

bequests and appointments to surviving spouse

§ 8.13. Forms and amount of allowance for support

§ 8.15. Determining whether omitted spouse is entitled

to amount from estate

• Connecticut Estates Practice, Probate Litigation in

Connecticut 3d, by Ralph H. Folsom et al., Thomson West,

2024 (also available on Westlaw).

Chapter 1, Will and lifetime transfer contests

§ 1:24. Spousal right to elect against the will; Spousal

contest of lifetime transfers

• LexisNexis Practice Guide: Connecticut Estate Planning, by

Victoria Spellman, 2023 ed., LexisNexis (also available on

Lexis).

§ 5.23. Disinheriting the surviving spouse; Spousal

shares and allowances

• 20 Connecticut Practice Series, Connecticut Elder Law, by

Kate McEvoy, 2024 ed., Thomson West (also available on

Westlaw).

§ 4.9. Wills: Failure to make provision for surviving

spouse

§ 15:8. Beneficiary designations exempt from laws

governing transfer by will

§ 15:21. Probate Process: Statutory share

• Office of the Probate Court Administrator, State of

Connecticut, Probate Court User Guide, Understanding

Trusts. (2016).

• Office of the Probate Court Administrator, State of

Connecticut, Probate Court User Guide, Administration of

Decedents’ Estates. (2023).

• Connecticut Estate Planning Wills and Trusts Library, Forms

and Practice Manual, by Robert F. Cohn, 2023 ed., Data

Trace Pub. Co.

§ 28.7. Spousal right of election in Connecticut

• Connecticut Estates Practice, Settlement of Estates in

Connecticut 3D, by Daniel G. Johnson et al., Thomson West,

2024 (also available on Westlaw).

Chapter 8. Suits and claims

Effect of death on actions and rights of action

Rights of Surviving Spouse - 14

§ 8:253. Statutory share of surviving spouse

§ 8:254. — Conditions precedent

§ 8:255. — Premarital agreement

§ 8:256. — Amount of share

§ 8:257. — Effect of election

§ 8:258. — Allocation of property

§ 8:259. — Support allowance

Chapter 9., Accounting and distribution

Testate distribution: Distribution: Division of assets --

Spousal share

§ 9:171. Surviving spouse’s claim to a statutory share of

estate

§ 9:172. Other persons eligible to make the spousal

election

§ 9:173. Timing

§ 9:174. Spousal share

§ 9:175. - Setting up statutory share

§ 9:176. - Will provisions void

§ 9:177. - Disclaiming the statutory share

§ 9:178. - Support allowance

§ 9:179. - Establishing the “statutory share trust”

§ 9:259. - Special types of distribution decrees - Life

estate

• A Practical Guide to Probate in Connecticut, 2nd ed., by

Peter T. Mott, Alyssa V. Sherriff, editors, Massachusetts

Continuing Legal Education, Inc., 2023 (also available on

Westlaw).

Chapter 6. Postmortem planning

§ 6.1. Introduction

§ 6.3. Options available to the surviving spouse

FORMS:

• LexisNexis Practice Guide: Connecticut Probate and Estate

Administration, James I. Dougherty et al., 2023 ed.,

LexisNexis (also available on Lexis).

§ 8.17. Sample statutory share election

LAW REVIEWS:

• Pratt, David, Marriage, Divorce, Death, and ERISA, 31

Quinnipiac Probate Law Journal 101 (2018).

• Martin D. Begleiter, Grim Fairy Tales: Studies of Wicked

Stepmothers, Poisoned Apples, and the Elective Share, 78

Alb. L. Rev. 521 (2014-2015).

• Barbara J. Stamm, Case Comment, Dalia v. Lawrence: A

Battle Of Statutory Interpretation Versus Public Policy, 9

Connecticut Probate Law Journal 357 (1995).

• Mary Moers Wenig, The Marital Property Law Of Connecticut:

Past, Present And Future, 1990 Wisconsin Law Review 807

(1990).

Public access to law

review databases is

available on-site at

each of our law

libraries.

Rights of Surviving Spouse - 15

• Michael A. Neufeld, Until Death Or Divorce Do Us Part:

Estate Planning For Clients Who Wish To Insulate Their

Assets From Their Spouses, 58 Connecticut Bar Journal 267

(1984).

• Elias Clark, The Recapture Of Testamentary Substitutes To

Preserve The Spouse's Elective Share: An Appraisal Of

Recent Statutory Reforms, 2 Connecticut Law Review 513

(1970).

Rights of Surviving Spouse - 16

Table 1: Statutory Share

Conn. Gen. Stat. § 45a-436 (2023)

Statutory

(a) On the death of a spouse, the surviving spouse may elect,

as provided in subsection (c) of this section, to take a

statutory share of the real and personal property passing

under the will of the deceased spouse. The “statutory

share” means a life estate of one-third in value of all the

property passing under the will, real and personal, legally or

equitably owned by the deceased spouse at the time of his

or her death, after the payment of all debts and charges

against the estate. The right to such third shall not be

defeated by any disposition of the property by will to other

parties.

Effect of will;

right of

election

(b) If the deceased spouse has by will devised or bequeathed a

portion of his or her property to his or her surviving spouse,

such provision shall be taken to be in lieu of the statutory

share unless the contrary is expressly stated in the will or

clearly appears therein; but, in any such case, the surviving

spouse may elect to take the statutory share in lieu of the

provision of the will.

Time

limitation;

notice

estate of the surviving spouse, with the approval, after

notice and hearing, of the Probate Court by which such

conservator or guardian was appointed, shall, not later than

one hundred fifty days after the mailing of the decree

admitting the will to probate, file a notice, in writing, of his

or her intention to take the statutory share with the Probate

Court before which the estate is in settlement, and if such

notice is not so filed, the surviving spouse shall be barred of

such statutory share.

Support

allowance

(d) If the Probate Court has allowed a support allowance under

section 45a-320 from the deceased spouse's estate for

support of the surviving spouse and for the support of his or

her family, the surviving spouse shall not take his or her

statutory share until the expiration of the time for which the

support allowance is made.

[cont’d]

Rights of Surviving Spouse - 17

Conn. Gen. Stat. § 45a-436 (2023) [cont’d]

Personal or

real property

(e) The statutory share shall be set out by the fiduciary

charged with the administration of the estate or, in the

discretion of the Probate Court on its own motion or on

application by any interested person, by distributors

appointed by the Probate Court. The statutory share may

consist of personal property or real property, or both,

according to the judgment of the fiduciary or distributors.

Provision by

Prior Written

Contract

(f) The provisions of this section with regard to the statutory

share of the surviving spouse in the property of the

deceased spouse shall not apply to any case in which, by

written contract made before or after marriage, either party

has received from the other what was intended as a

provision in lieu of the statutory share.

Effect of

Abandonment

by Surviving

Spouse

(g) A surviving spouse shall not be entitled to a statutory

share, as provided in subsection (a) of this section, or an

intestate share, as provided in section 45a-437, in the

property of the other if such surviving spouse, without

sufficient cause, abandoned the other and continued such

abandonment to the time of the other's death.

Rights of Surviving Spouse - 18

Section 2: Intestate Share in Connecticut

A Guide to Resources in the Law Library

SCOPE:

Bibliographic resources relating to the surviving spouse's

intestate share of real and personal property. Also, legal

arrangements by which intestate share may legally be avoided.

TREATED

ELSEWHERE:

• If there is a will—see § 1 Statutory share

• If estate is insolvent—see § 3 Insolvent estate

STATUTES:

• Conn. Gen. Stat. (2023)

§ 45a-437. Intestate succession. Distribution to spouse

§ 45a-257a. Failure of testator to provide for surviving

spouse who married testator after execution of will.

Determination of share of estate

§ 45a-436. Succession upon death of spouse. Statutory

(g) A surviving spouse shall not be entitled to a statutory

share, as provided in subsection (a) of this section, or an

intestate share, as provided in section 45a-437, in the

property of the other if such surviving spouse, without

sufficient cause, abandoned the other and continued such

abandonment to the time of the other's death.

CASES:

• In Re: Johnson Lee, 24 Quinnipiac Prob. L.J. 1 (2010).

“The Connecticut Supreme Court has not addressed the

circumstances under which a surviving spouse is entitled to

modify the decedent’s will by subjecting it to the laws of

intestacy. The only reported case specifically addressing

section 45a-257a(a) is In Re Estate of Charles W. Ball, 13

Quinnipiac Prob. L.J. 5 (1998), where Judge Kurmay opined:

‘The obvious purpose of the present statute is to ensure that

the contingency of marriage is not overlooked in the drafting

of a will….The central issue which a court must determine is

not the adequacy of the provision for the surviving spouse,

but whether such provision has been made at all.’’’ (p. 5)

“Ms. Sessa was ‘provided for’ as defined under section 45a-

257a(a), under the pour-over provision in the will.

Furthermore, the Court finds the second exception under

section 45a-257a(a)(2) has been met. The amount devised

to Ms. Sessa, which the Court may consider under the

second exception, leads to the reasonable inference that Mr.

Lee intended that the Helen Sessa Gift Trust and Shanghai

apartment be in lieu if a testamentary provision; she is

therefore not entitled to an intestate share.” (p. 8)

• In Re Estate of Charles W. Ball, 13 Quinnipiac Prob. L.J. 5

(1998). “The issue before the Court is whether the

You can visit your

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recent statutes and

public acts on the

Connecticut General

Assembly website to

confirm that you are

using the most up-

to-date statutes.

Once you have

identified useful

cases, it is important

to update the cases

before you rely on

them. Updating case

law means checking

to see if the cases

are still good law.

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Rights of Surviving Spouse - 19

decedent’s widow is entitled to an intestate share, despite

the failure of the will to provide for her monetarily.” (p. 7)

“In this case, the widow was mentioned specifically - - not as

a wife, but as ‘a special friend and mother of my daughters.’

Although not providing monetarily for her, he did name her

as successor executrix and trustee. It is most significant

that he named these two daughters as the residuary

beneficiaries of his estate, with the money to be placed in

trust and managed by the widow herself. In addition, he

made her the joint owner of a personal bank account.

Finally, he bestowed upon her the honor and responsibility as

serving as executrix, if his own attorney could or would not.

It is abundantly clear that he carefully considered his ‘special

friend’ and soon to be wife.“

“…However, the status of marriage has bestowed upon his

widow certain rights which she would not have enjoyed

before their marriage: for example, her right to seek an

elective share and her right to seek a support allowance.” (p.

• Dinan v. Marchand, 279 Conn. 558, 903 A.2d 201 (2006).

“‘The will did not provide for the contingency of marriage.

Absent the codicil, the testator's marriage to the plaintiff

would have revoked the will in its entirety; General Statutes

(Rev. to 1995) § 45a-257; see also General Statutes § 45a-

257e; leaving the plaintiff with an intestate share of the

estate, in this case, one half outright. See General Statutes

§ 45a-437, which provides in relevant part: ‘Intestate

succession. Distribution to spouse. (a) If there is no will . . .

the portion of the intestate estate of the decedent . . . which

the surviving spouse shall take is . . . (4) If there are

surviving issue of the decedent one or more of whom are not

issue of the surviving spouse, one-half of the intestate estate

absolutely.’

’We note that for wills executed after January 1, 1997, a

testator's marriage after the execution of a will no longer

revokes the will. Rather, it remains with a surviving spouse,

who is to receive an intestate share in the decedent's estate.

General Statutes § 45a-257a (a).’ Dinan v. Marchand, supra,

[492] 91 Conn. App. 494-95 n. 2.” [FN4]

• Elgar v. Elgar, 238 Conn. 839, 840, 679 A.2d 937 (1996).

“Prior to their marriage, they had executed an antenuptial

agreement wherein each party had waived his or her rights

to the other’s property in the event of death or divorce. In

1990 the decedent died intestate.”

• Dalia v. Lawrence, 226 Conn. 51, 627 A.2d 392 (1993). “The

principal issue in this appeal is whether valid trust savings

accounts, established by a decedent pursuant to General

Rights of Surviving Spouse - 20

Statutes § 36-110(a), must be included in the statutory

intestate share of the surviving spouse of the decedent

pursuant to General Statutes (Rev. to 1989) § 45-273a(b).”

• Kingsbury v. Scovill’s Administrator, 26 Conn. 349, 352,

1857 WL 959 (1857). “The widow of Mr. Scovill, who died

intestate, having died after administration granted on his

estate and before distribution, the question is, whether her

personal representatives are entitled to the distributive part

of his personal estate to which she would have been entitled

if she had been living at the time of the distribution, or

whether it belongs to his children. We are clearly of the

opinion that her right to that part of his estate was a present

vested interest on his death, which was not defeated by her

subsequent death, and that it therefore belongs to her

representatives. An equitable right to it vested in her

immediately on the decease of her husband[.]”

WEST KEY

NUMBERS:

• Executors and Administrators #116.

Allowance to surviving wife, husband or children #173-201.

• Descent and Distribution #24.

Surviving husband or wife #52-67.

• Wills #409.

Election #778-803.

DIGESTS:

• West’s ALR Digest, Descent and distribution, Thomson West,

2024 (also available on Westlaw).

Persons entitled and their respective shares: Surviving

husband or wife

§ 52. Nature of the right in general

(1). In general

(2). Rights of surviving wife in general

(3). Rights of surviving husband in general

§ 53. Constitutional and statutory provisions

§ 54. Issue of intestate also surviving

§ 55. —In general

§ 56. —Issue of former marriage

§ 57. Failure of issue of intestate

§ 58. Failure of issue and of other kindred of intestate

§ 59. Property acquired by intestate by gift, devise, or

descent

§ 60. —In general

§ 61. —From former husband or wife

§ 62. Estoppel, waiver, or release of right

§ 63. Forfeiture of right

• ALR Index, Descent and distribution

Surviving Spouse

ENCYCLOPEDIAS:

• 26B CJS, Descent and distribution, Thomson West, 2014

(also available on Westlaw).

Surviving Husband or Wife

§ 67. Generally

Rights of Surviving Spouse - 21

§ 68. Rights of surviving spouse upon death of

intestate spouse

§ 69. Effect of will; rights of pretermitted spouse

§ 70. Effect of survival of issue or failure of issue of

intestate on rights of surviving spouse

§ 71. Rights in case of remarriage

§ 72. Waiver, release, or estoppel

§ 73. Forfeiture of rights by misconduct of surviving

spouse

§ 74. Effect of divorce

• 23 Am Jur 2d, Descent and distribution, Thomson West,

2024, with 2024 supplement (also available on Westlaw).

Surviving Spouse

§ 77. Generally

§ 78. Uniform Probate Code

Circumstances affecting size of spouse’s share

§ 79. Absence of issue, parent or kindred

§ 80. Effect of changes in value after death of spouse

§ 81. Effect of debts of deceased; funeral and

administration expenses

§ 82. Effect of conveyances or encumbrances by

deceased

§ 83. Property in another state

Effect of misconduct by surviving spouse

§ 84. Generally

§ 85. Desertion, abandonment, or nonsupport

§ 86. —Consensual separation

§ 87. —Separation for cause

§ 88. Adultery

§ 89. Feloniously killing spouse

Effect of marriage incidents; Divorce and separation

§ 90. Void or voidable marriage

§ 91. —Effect of prior institution of annulment

proceedings

§ 92. Remarriage after death of the intestate

§ 93. Bigamous marriage of surviving spouse

§ 94. Divorce

§ 95. —Interlocutory decree

§ 96. Separation agreement

§ 97. —Construction

§ 98. —Effect of reconciliation

TEXTS &

TREATISES:

• Connecticut Estates Practice, Settlement of Estates in

Connecticut 3D, by Daniel G. Johnson et al., Thomson West,

2024 (also available on Westlaw).

Chapter 9. Accounting and distribution

Nature and elements of distribution: intestate distribution

§ 9:149. Laws of intestate distribution – Spouse only

§ 9:150. — Spouse and issue of decedent

§ 9:151. -- Spouse not parent to all children

§ 9:152. — Relationship of intestate share to spouse’s

right of election

Encyclopedias and

ALRs are available in

print at some law

library locations and

accessible online at

all law library

locations.

Online databases are

available for

in-library use.

Remote access is not

available.

Rights of Surviving Spouse - 22

§ 9:155. — Spouse and parent but not issue

§ 9:164. — General rules -- Determination of “issue”

• Connecticut Estates Practice, Drafting Trusts in Connecticut

2d, by Ralph H. Folsom et al., Thomson West, 2023 (also

available on Westlaw).

Chapter 1. The use of trusts in estate planning

§ 1:2 Commentary

• Connecticut Estates Practice, Probate Litigation in

Connecticut 3d, by Ralph H. Folsom et al., 2023 ed.,

Thomson West (also available on Westlaw).

§1:18 Revocation (of Will): Generally; dependent relative

revocation; marital relations and children

• Connecticut Estates Practice, Drafting Wills in Connecticut

3d, by Laura Weintraub Beck et al., 2023-2024 ed., Thomson

West (also available on Westlaw)

§ 20:5 Clause explaining disinheritance of named heir

• 20 Connecticut Practice Series, Connecticut Elder Law, by

Kate McEvoy, 2024 ed., Thomson West (also available on

Westlaw).

§ 15:22. Intestate share

• Connecticut Estate Planning Wills and Trusts Library, Forms

and Practice Manual, by Robert F. Cohn, 2023 ed., Data

Trace Pub. Co.

§ 28.1.2. Operation of Intestacy Law – Share of surviving

spouse and others

• A Practical Guide to Probate in Connecticut, 2nd ed., by

Peter T. Mott and Alyssa V. Sheriff, editors, 2023,

Massachusetts Continuing Legal Education, Inc. (also

available on Westlaw).

Chapter 6. Postmortem planning

§ 6.2. Intestacy

LAW REVIEWS:

• Barbara J. Stamm, Case Comment, Dalia v. Lawrence: A

Battle Of Statutory Interpretation Versus Public Policy, 9

Connecticut Probate Law Journal 357 (1995).

• Mary Moers Wenig, The Marital Property Law Of Connecticut:

Past, Present And Future, 1990 Wisconsin Law Review 807

(1990).

• Michael A. Neufeld, Until Death Or Divorce Do Us Part:

Estate Planning For Clients Who Wish To Insulate Their

Assets From Their Spouses, 58 Connecticut Bar Journal 267

(1984).

Public access to law

review databases is

available on-site at

each of our law

libraries.

Each of our law

libraries own the

Connecticut treatises

cited. You can

our catalog to

determine which of

our law libraries own

the other treatises

cited or to search for

more treatises.

References to online

databases refer to

in-library use of

these databases.

Remote access is not

available.

Rights of Surviving Spouse - 23

Table 2: Spouse's Intestate Share

Spouse’s Intestate Share

Conn. Gen. Stat.

§ 45a-437 (2023).

Intestate

succession.

Distribution to

spouse.

(a) If there is no will, or if any part of the property, real or

personal, legally or equitably owned by the decedent at the

time of his or her death, is not effectively disposed of by the

will or codicil of the decedent, the portion of the intestate

estate of the decedent, determined after payment of any

support allowance from principal pursuant to section 45a-320,

which the surviving spouse shall take is:

(1) If there is no surviving issue or parent of the decedent, the

entire intestate estate absolutely;

(2) If there is no surviving issue of the decedent but the

decedent is survived by a parent or parents, the first one

hundred thousand dollars plus three-quarters of the balance of

the intestate estate absolutely;

(3) If there are surviving issue of the decedent all of whom are

also issue of the surviving spouse, the first one hundred

thousand dollars plus one-half of the balance of the intestate

estate absolutely;

(4) If there are surviving issue of the decedent one or more of

whom are not issue of the surviving spouse, one-half of the

intestate estate absolutely.

(b) For the purposes of this section:

(1) Issue includes children who qualify for inheritance under

the provisions of section 45a-438 and the legal representatives

of such children;

(2) A person shall be considered a parent if the person qualifies

for inheritance from or through the child under the provisions

of section 45a-438b.

Conn. Gen. Stat.

§ 45a-257a

(2023).

Failure of testator

to provide for

surviving spouse

who married

testator after

execution of will.

Determination of

share of estate.

(a) If a testator fails to provide by will for the testator's

surviving spouse who married the testator after the execution

of the will, the surviving spouse shall receive the same share of

the estate the surviving spouse would have received if the

decedent left no will unless: (1) It appears from the will that

the omission was intentional; or (2) the testator provided for

the spouse by transfer outside the will and the intent that the

transfer be in lieu of a testamentary provision is shown by the

testator's statements, or is reasonably inferred from the

amount of the transfer or other evidence.

(b) In satisfying a share provided in subsection (a) of this

section, devises and legacies made by the will abate in

accordance with section 45a-426.

Rights of Surviving Spouse - 24

not elect to take a statutory share under section 45a-436.

Conn. Gen. Stat.

§ 45a-436(g)

(2023).

A surviving spouse shall not be entitled to a statutory share, as

provided in subsection (a) of this section, or an intestate share,

as provided in section 45a-437, in the property of the other if

such surviving spouse, without sufficient cause, abandoned the

other and continued such abandonment to the time of the

other's death.

Rights of Surviving Spouse - 25

Table 3: Avoiding Intestate Share

Dalia v. Lawrence

226 Conn. 51, 68, 627 A.2d 392 (1993)

“Commentators have acknowledged other legal arrangements by which a

Connecticut decedent may validly avoid his or her surviving spouse's intestate

share.

See M. Wenig, ‘The Marital Property Law of Connecticut: Past, Present and Future,’

1990 Wis. L. Rev. 807, 855 (suggesting such arrangements as an "inter vivos trust

with reserved life estate and power of appointment; revocable inter vivos trust; life

insurance; refund annuity; revocable or irrevocable joint and survivorship holdings;

IRAs and nonqualified retirement plans; pay-on-death U.S. bonds and other P.O.D.

contractual benefits; and even a deed deliverable to grantee on death of grantor");

E. Clark, ‘The Recapture of Testamentary Substitutes to Preserve the Spouse's

Elective Share: An Appraisal of Recent Statutory Reforms,’ 2 Conn. L. Rev. 513, 531

(1970) (suggesting insurance, annuities, pensions, United States bonds payable to

children on parent's death, or various trust arrangements).”

Rights of Surviving Spouse - 26

Section 3: Insolvent Estate

A Guide to Resources in the Law Library

SCOPE:

Bibliographic resources relating to an insolvent estate and the

surviving spouse.

DEFINITIONS:

• “But even the fact of insolvency is not, in and of itself, a

ground for denying an allowance if one is found to be

necessary.” Baldwin v. Tradesmens National Bank, 147

Conn. 656, 662, 165 A.2d 331 (1960).

STATUTES:

• Conn. Gen. Stat. (2023).

§ 45a-435. Personal property that may be set out to

spouse from insolvent estate.

§ 45a-383. Settlement of estate without claims procedures.

§ 52-352b. Exempt property.

CASES:

• Baldwin v. Trademens National Bank, 147 Conn. 656, 662,

165 A.2d 331 (1960). “Rather the statute contemplates the

award of such amount as may be necessary, in addition to

the other assets of the spouse, to maintain a household and

manner of living appropriate to the decedent’s station in life,

in view of the financial condition of his estate upon his death

. . . . Of course, an allowance cannot be granted for the

purpose of enriching the widow at the expense of others

entitled to the estate or the rights of creditors in case of

insolvency. But even the fact of insolvency is not, in and of

itself, a ground for denying an allowance if one is found to

be necessary.”

• Barnum v. Boughton, 55 Conn. 117, 118, 10 A. 514 (1887).

“If there are wife and children surviving, presumably they

are without means for providing themselves with instant

food and fuel, except as they may claim these necessities

from the hand of public charity; and must so continue until

the law has completed the work of division; a work of

statutory necessity, spreading over a considerable space of

time. In the interest of humanity and for the prevention of

what in almost every case would be an unseemly and

unnecessary demand upon public charity, the law provides

that the probate court may make such temporary allowance

to the widow or children as shall supply their daily recurring

needs. Of course, if it shall finally result that the estate

is not equal to the debts, these last are to bear the

burden of the temporary necessities of the family: This

is no hardship because every man knows when he

gives credit to another that death may overtake the

debtor when he is unable to pay and that a portion of

such assets as he may have will be expended for the

You can visit your

local law library or

search the most

recent statutes and

public acts on the

Connecticut General

Assembly website.

Once you have

identified useful

cases, it is important

to update the cases

before you rely on

them. Updating case

law means checking

to see if the cases

are still good law.

You can contact your

local law librarian to

learn about the tools

available to you to

update cases.

Rights of Surviving Spouse - 27

temporary support of his wife and children. It is a risk

intentionally assumed, and the result therefore not to

be complained of.” (Emphasis added.)

WEST KEY

NUMBERS:

• Executors and Administrators.

Insolvent estates #408-419.

ENCYCLOPEDIAS:

• 34 CJS Executors and Administrators, Thomson West, 2014

(Also available on Westlaw).

Insolvent estates

§§ 829-835. In general

§§ 836-838. Collection of estate and sales of estate

property

§§ 839-841. Claims and rights of creditors

§§ 842-846. Paying of claims and distribution

• 31 Am Jur 2d Executors and Administrators, Thomson West,

2022, with 2024 supplement (Also available on Westlaw).

Insolvent estates

§ 692. Generally

§ 693. Claims of creditors of same class

§ 694. Mistake as to solvency of estate

§ 695. Avoidance of unrecorded mortgage

TEXTS &

TREATISES:

• Connecticut Estates Practice, Settlement of Estates in

Connecticut 3D, by Daniel G. Johnson et al., Thomson West,

2024 (also available on Westlaw).

Chapter 7. Management of estates by executors and

administrators

Statutory provisions -- The family allowance for support

§ 7:95. – Other bars -- Insolvency

• 20 Connecticut Practice Series, Connecticut Elder Law, by

Kate McEvoy, Thomson West, 2024 ed., (Also available on

Westlaw).

§ 15:23. Insolvent estate

• A Practical Guide to Estate Planning in Connecticut, 2nd ed.,

by Steven M. Fast, B. Dane Dudley et al., Massachusetts

Continuing Legal Education, Inc., 2021 (also available on

Westlaw).

§ 13.4.1. Intestacy

Each of our law

libraries own the

Connecticut treatises

cited. You can

our catalog to

determine which of

our law libraries own

the other treatises

cited or to search for

more treatises.

References to online

databases refer to

in-library use of

these databases.

Remote access is not

available.

Encyclopedias and

ALRs are available in

print at some law

library locations and

accessible online at

all law library

locations.

Online databases are

available for

in-library use.

Remote access is not

available.

Rights of Surviving Spouse - 28

Section 4: Support during Settlement of the Estate

A Guide to Resources in the Law Library

SCOPE:

Bibliographic resources relating to the surviving spouse's

allowance during the settlement of the estate.

STATUTES:

• Conn. Gen. Stat. (2023).

§ 45a-320. Allowance for support of surviving spouse and

family. Family car.

§ 45a-321. Custody of real property. Products and income of

real property. Family may occupy homestead.

CASES:

• Scott, Jr., Executor v. Mark M. Heinonen, 118 Conn. App.

577, 578, 985 A.2d 358 (2009). “The issue in this appeal is

whether the executor of an estate, who has been authorized

to market certain real property of a decedent to satisfy the

financial obligations of the decedent’s estate, has the power

to evict an occupant to whom the property has specifically

been devised by the will of the decedent.”

• Estate of Franz F. Goldbach, 7 Quinnipiac Probate Law

Journal. 239, 241-242 (1993). “The law is incontrovertibly

clear that the petitioner must be financially dependent upon

the decedent in order to avail himself of the free use and

occupancy of the family home for any period of time.”

• Glemboski v. Glemboski, 184 Conn. 602, 440 A.2d 242

(1981). “Upon application of the defendant Leon Glemboski,

as executor of the estate, on February 13, 1970 the Probate

Court awarded the plaintiff $400 per month widow’s

allowance retroactive to March, 1969. Although the executor

tendered payment, the plaintiff refused to accept the

allowance checks” (p. 603)

“…More than five years after their father’s death, Thomas,

his brothers and sister finally settled the will contest by

entering into an agreement…. In response to the executor’s

motion to modify and terminate the widow’s allowance in

accordance with the agreement, an ex parte probate decree

… retroactively limited the widow’s allowance to $5500 and

ordered the allowance terminated as of the date that amount

had accrued. The plaintiff has not appealed that decree. The

plaintiff, however, did timely appeal from the … probate

decree allowing and approving the final account of the

executor and ordering distribution of the estate. …The trial

court dismissed the appeal on the grounds … that the

adequacy of a widow’s allowance cannot be collaterally

attacked on an appeal from the final account of the estate…”

(p. 604)

You can visit your

local law library or

search the most

recent statutes and

public acts on the

Connecticut General

Assembly website.

Once you have

identified useful

cases, it is important

to update the cases

before you rely on

them. Updating case

law means checking

to see if the cases

are still good law.

You can contact your

local law librarian to

learn about the tools

available to you to

update cases.

Rights of Surviving Spouse - 29

Sklar et al. v. Estate of Sklar, 168 Conn 101, 108-109, 357

A.2d 900 (1975). “We conclude that the public policy

expressed in the latter portion of s 46-12 of the General

Statutes [now § 45a-436] authorizing the Probate Court to

grant a widow’s allowance pending the settlement of her

husband’s estate is so independent of the will, well

established, and compelling, that it must prevail over any

contrary intention expressed in the husband’s will.

Accordingly, an attempt in his will to interfere with the

exercise of the Probate Court’s discretion or the right of the

widow to the benefit of the allowance for support permitted

to her by statute, or to require her to make an election

between the benefits under his will and the statutory

allowance during the period of administration, is contrary to

public policy and void."

• Baldwin v. Tradesmens National Bank, 147 Conn. 656, 662,

165 A.2d 331 (1960). “Rather the statute contemplates the

award of such amount as may be necessary, in addition to

the other assets of the spouse, to maintain a household and

manner of living appropriate to the decedent’s station in life,

in view of the financial condition of his estate upon his death

. . . . Of course, an allowance cannot be granted for the

purpose of enriching the widow at the expense of others

entitled to the estate or the rights of creditors in case of

insolvency.”

• Barnum v. Boughton, 55 Conn. 117, 118, 10 A. 514 (1887).

“If there are wife and children surviving, presumably they

are without means for providing themselves with instant

food and fuel, except as they may claim these necessities

from the hand of public charity; and must so continue until

the law has completed the work of division; a work of

statutory necessity, spreading over a considerable space of

time. In the interest of humanity and for the prevention of

what in almost every case would be an unseemly and

unnecessary demand upon public charity, the law provides

that the probate court may make such temporary allowance

to the widow or children as shall supply their daily recurring

needs.”

• Staub’s Appeal from Probate, 66 Conn. 127, 133, 33 A. 615

(1895). “The principal question in the case relates to the

effect of the ante-nuptial contract upon the right of the

widow to claim or receive an allowance.”

• Havens et al. Appeal from Probate, 69 Conn 684, 695-696

38 A. 795 (1897). “…[T]he prayer for an allowance out of

the estate during the settlement of the same, ought to be

granted, and ...the amount deemed necessary by the court

for the support of the widow during the settlement of the

estate is the monthly payment named. In determining, in

Rights of Surviving Spouse - 30

pursuance of the statute, the amount it judges necessary for

the support of the widow during the settlement of the estate,

as so many dollars per month, the court necessarily

determines that a monthly payment of such sum during the

settlement of the estate is the amount it judges necessary

for support during that period. No other construction is

permissible.”

WEST KEY

NUMBERS:

• Executors and Administrators.

Allowance to surviving wife, husband, or children #173-201.

DIGESTS:

• West's ALR Digest, Executors and Administrators, Thomson

West, 2024 (Also available on Westlaw).

Allowances to surviving wife, husband, or children

§ 175. Quarantine or other occupation or use of property

§ 176. Maintenance and support

§ 180. Persons entitled

§ 181. Property subject to allowance

§ 182. Priority over other claims

§ 194. Allowance by court

ENCYCLOPEDIAS:

• 34 CJS Executors and Administrators, Thomson West, 2014

(Also available on Westlaw).

Allowance to Surviving Spouse or Children

§§ 460-476. In general

§§ 477-479. Persons entitled

§§ 480-482. Property subject to allowance

§§ 483-484. Priority over other claims

§§ 485-494. Bar, waiver, or relinquishment

§§ 495-512. Practice and procedure

§§ 513-514. Rights of creditors, heirs, distributees, or

legatees

• 31 Am Jur 2d Executors and Administrators, Thomson West,

2022, with 2024 supplement (Also available on Westlaw).

Family Allowance

§§ 539-544. Preliminary considerations

§§ 545-550. Persons entitled

§§ 551-553. Payment and amount

§§ 554-575. Waiver or relinquishment of right

§§ 576-580. Practice and procedure

§§ 581-583. Uniform Probate Code

TEXTS &

TREATISES:

• Connecticut Estates Practice, Settlement of Estates in

Connecticut 3D, by Daniel G. Johnson et al., Thomson West,

2024 (also available on Westlaw).

Chapter 7. Management of estates by executors and

administrators

Family rights during administration

§ 7:70. Statutory provisions

§ 7.72. – The right to occupy the family home

§ 7:75. The family allowance of support- In general

Encyclopedias and

ALRs are available in

print at some law

library locations and

accessible online at

all law library

locations.

Online databases are

available for

in-library use.

Remote access is not

available.

Rights of Surviving Spouse - 31

§ 7:76. – Nature and purpose of allowance

§ 7:77. – Nature of allowance

§ 7:78. – Priority of allowance

§ 7:80. -- Amount of allowance

§ 7:81. --- Appeal

§ 7:82. --- Necessary allowance

§ 7:83. --- Necessity

§ 7:84. --- Purpose

§ 7:85. --- Overlapping incomes

§ 7:86. – Duration and mode of payment of allowance

§ 7:96. – Procedure of granting, revoking, or modifying

allowance

§ 7:97. -- Application

§ 7:98. – The right to use of the family car

• LexisNexis Practice Guide: Connecticut Probate and Estate

Administration, James I. Dougherty et al., 2023 ed.,

LexisNexis (also available on Lexis).

§ 8.13. Forms and amount of allowance for support

• Connecticut Estates Practice, Probate Litigation in

Connecticut 3d, by Ralph H. Folsom et al., Thomson West,

2023 (also available on Westlaw).

Chapter 4, Fiduciary litigation

§ 4:15 Family allowances during probate

• A Practical Guide to Probate in Connecticut, 2nd ed., by

Peter T. Mott, Alyssa V. Sherriff, editors, Massachusetts

Continuing Legal Education, Inc., 2023 (also available on

Westlaw).

Chapter 6. Postmortem planning

§ 6.3.2. Spousal allowance

§ 6.3.3. Automobile

§ 6.3.4. Family occupancy of decedent’s primary

residence

FORMS:

• PC-202, Rev. 7/16, Petition/Support Allowance.

Each of our law

libraries own the

Connecticut treatises

cited. You can

our catalog to

determine which of

our law libraries own

the other treatises

cited or to search for

more treatises.

References to online

databases refer to

in-library use of

these databases.

Remote access is not

available.

Official Judicial

Branch forms are

frequently updated.

Please visit the

Official Court

Webforms page for

the current forms.

Rights of Surviving Spouse - 32

Section 5: Inchoate Rights

A Guide to Resources in the Law Library

SCOPE:

• Bibliographic resources relating to inchoate rights

DEFINITIONS:

• Inchoate right. “The universal rule is that the right of

either husband or wife in the real property of the other, of

which said other died seised, is conditioned solely upon

survivorship. If the one claiming such interest die before the

one seised of the fee, such death wholly extinguishes such

interest. During the life of such consort such interest in

realty is usually spoken of as ‘inchoate right.’ … It is, in

short, merely the beginning of a right that does not ripen

unless the one possessing such right in the property of

another shall survive.” Long v. Long, 124 N.E. 161, 162, 5

ALR 1343 (1919).

STATUTES:

• Conn. Gen. Stat. (2023).

§ 46b-36. Property rights of spouse not affected by

marriage.

CASES:

• Cherniack v. Home National Bank & Trust Co., 151 Conn.

367, 370, 198 A.2d 58 (1964). “It is important to bear in

mind in this connection that under Connecticut law neither

husband nor wife acquires, by virtue of the marriage, any

interest in the real or personal property of the other during

that other’s lifetime. General Statutes § 46-9 (now Conn.

Gen. Stat. § 46b-36). In other words either spouse may, in

his lifetime, without the consent or knowledge of the other,

make a valid gift, or otherwise dispose of his property, to a

third party.”

TEXTS &

TREATISES:

• Connecticut Estates Practice, Revocable Trusts and Trust

Administration in Connecticut, by Ralph H. Folsom et al.,

2023 (Also available on Westlaw).

§ 5:9. Rights of spouses

• 7 Connecticut Practice Series, Family Law and Practice with

Forms, 3d ed., by Arnold H. Rutkin et. al., Thomson West,

2010, with 2022-2023 supplement (also available on

Westlaw).

Chapter 7, “Property Rights of Husband and Wife.”

§ 7:2 Property rights of married persons

§ 7:9 Effect on lifetime disposition of property

Once you have

identified useful

cases, it is important

to update the cases

before you rely on

them. Updating case

law means checking

to see if the cases

are still good law.

You can contact your

local law librarian to

learn about the tools

available to you to

update cases.

Each of our law

libraries own the

Connecticut treatises

cited. You can

our catalog to

determine which of

our law libraries own

the other treatises

cited or to search for

more treatises.

References to online

databases refer to

in-library use of

these databases.

Remote access is not

available.