Dinan v. Patten

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 ALTHEA DINAN v. ANNE PATTEN ET AL.
(SC 19204)
Palmer, Zarella, McDonald, Espinosa, Robinson and Vertefeuille, Js.
Argued September 17, 2014—officially released June 16, 2015

William J. Kupinse, Jr., with whom were Andrew
M. McPherson, and, on the brief, Dennis M. Laccavole
and Walter A. Flynn, Jr., for the appellant-cross appel-
lee (plaintiff).
Michael P. Kaelin, with whom was William N.
Wright, for the appellees-cross appellants (named
defendant et al.).
Jeffrey A. Cooper filed a brief as amicus curiae.
Kelley Galica Peck, Richard A. Marone and Marilyn
B. Fagelson filed a brief for the Connecticut Bar Associ-
ation as amicus curiae.
 Opinion

ESPINOSA, J. The present case requires us to con-
sider the method by which General Statutes § 45a-4361
(spousal share statute) requires a surviving spouse’s
statutory share to be calculated. The plaintiff, Althea
Dinan, appeals, and the defendant Anne Patten, individ-
ually and in her capacity as trustee,2 cross appeals, from
the judgment of the trial court affirming in part the
decree of the Probate Court.3 The plaintiff claims that
the trial court improperly: (1) concluded that the value
of the statutory share should be calculated based on
the value of the estate as of the date of distribution,
rather than the value of the estate at the time of the
decedent’s death; (2) determined that with respect to
the period prior to the date of distribution, the plaintiff
was entitled to the average yield of one third of the
estate during that time; and (3) concluded that the Pro-
bate Court properly appointed distributors to set out
the statutory share. In the cross appeal, the defendant
claims that the trial court improperly concluded that:
(1) the plaintiff’s claim to a statutory share was not
barred by the doctrines of waiver, estoppel and election
of remedies; and (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). We affirm the judgment of the trial court,
and address each of the parties’ claims in turn.
The record reveals the following relevant facts as
found by the trial court, and procedural history. The
plaintiff’s husband, Albert A. Garofalo (decedent), died
on July 21, 2000. Prior to his marriage to the plaintiff,
the decedent executed a codicil to his preexisting will,
thereby republishing his will, which had devised noth-
ing to the plaintiff. Dinan v. Marchand, 279 Conn. 558,
560, 903 A.2d 201 (2006). The beneficiaries to the will
were Patten, who is the decedent’s daughter, and her
three children, Nicole M. Toth, Aaron M. Toth and Alexis
P. Toth. On October 27, 2000, the plaintiff timely elected
her statutory share pursuant to the spousal share stat-
ute, § 45a-436 (c). See footnote 1 of this opinion. The
plaintiff also challenged the validity of the will on the
basis of undue influence and lack of testamentary
capacity, and appealed to the Superior Court from the
Probate Court’s admission of the will and the codicil
to probate. Following a jury trial, the trial court upheld
the validity of the will in accordance with the jury’s
verdict, and that judgment was affirmed by this court
on appeal. Dinan v. Marchand, supra, 560–61.
On May 2, 2008, the plaintiff requested that her statu-
tory share be set out. See General Statutes § 45a-436
(e). The request, and the failure of the parties to reach
an agreement as to the value of the statutory share,
prompted the current administrator of the estate, Donat
C. Marchand,4 to file a motion with the Probate Court
seeking direction from the court as to how to determine
the amount of the statutory share. The issues before
us in this appeal pertain to the February 16, 2010 decree
of the Probate Court, issued in response to the adminis-
trator’s motion.
In its decision, the Probate Court first concluded that
the statutory share should be calculated based on the
value of the estate after the deduction of federal and
state estate taxes. The court relied on the definition of
the statutory share in the spousal share statute as ‘‘a
life estate of one-third in value of all the property pass-
ing 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. . . .’’ (Emphasis added.) General
Statutes § 45a-436 (a). Because the court concluded
that estate taxes are ‘‘charges’’ against the estate, it
held that the statutory share must be set out after the
taxes are deducted from the value of the estate. Next,
the court exercised its discretion pursuant to § 45a-436
(e) to appoint distributors to set out the statutory share,
observing that ‘‘[w]here distributors are appointed by
a court of probate to divide an estate, they proceed
upon the values determined by them as of the date of
the distribution . . . .’’ Willis v. Hendry, 127 Conn.
653, 669, 20 A.2d 375 (1940). In determining the annual
amount payable to the plaintiff on her statutory share,
the Probate Court relied on this court’s decision in
Bankers Trust Co. v. Greims, 110 Conn. 36, 48, 147 A.
290 (1929), and concluded that once her statutory share
is set out, the plaintiff will be due income on that share
from the date of the decedent’s death to the time of
distribution, based on the average yield of the estate
for that period. Finally, the court concluded that the
statutory share should be valued as of the time that the
final account is presented.
The plaintiff appealed to the trial court, which tried
the matter de novo. See In re Joshua S., 260 Conn. 182,
199, 796 A.2d 1141 (2002) (‘‘[a]s a general matter, when
a decision of the Probate Court is appealed to the Supe-
rior Court, a trial de novo is conducted’’). The court
first rejected the defendant’s claim that, because the
plaintiff had contested the decedent’s will before
requesting that her share be set out, she was barred
from recovering her statutory share by the doctrines
of waiver, estoppel, election of remedies and laches.
Turning to the substantive issues, the trial court
reversed in part the decree of the Probate Court, only
as to that court’s ruling that the value of the estate after
the deduction of taxes should serve as the basis for the
statutory share.5 The court disagreed with the Probate
Court’s conclusion that estate taxes constituted
‘‘charges’’ against the estate pursuant to the spousal
share statute. General Statutes § 45a-436 (a). The court
concluded instead that, consistent with the public pol-
icy principles underlying the state’s proration statute,
General Statutes § 12-401, the benefit of the marital
deduction should inhere solely to the plaintiff. The court
concluded, therefore, that the statutory share must be
calculated on the basis of the value of the estate before
the deduction of taxes. As to all other issues, the trial
court affirmed the Probate Court decree. This appeal
and cross appeal followed.6
For simplicity, before we set forth our rationale as
to each of the five issues presented in the appeal and
the cross appeal, we first summarize our holdings as
to all of those issues, in the order in which we will
discuss them. We hold that the trial court properly con-
cluded that: (1) the doctrines of waiver, estoppel and
election of remedies do not bar the plaintiff from seek-
ing 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 statu-
tory 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 distribu-
tion, 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. Accordingly, we affirm the judgment of the
trial court.
I
THE DOCTRINES OF WAIVER, ESTOPPEL AND
ELECTION OF REMEDIES
The defendant argues that the trial court improperly
rejected her claim that the doctrines of waiver, estoppel
and election of remedies bar the plaintiff from claiming
her statutory share because the plaintiff contested the
decedent’s will before she requested that her statutory
share be set out.7 As to all of these doctrines, the defen-
dant relies on the fact that, between 2000 and 2006, the
plaintiff challenged the validity of the decedent’s will,
on the basis that it was the product of undue influence,
until this court ultimately rejected her claim, affirming
the judgment of the Appellate Court, which had
affirmed the judgment of the trial court. See Dinan v.
Marchand, supra, 279 Conn. 562. In 2008, only after she
had lost her appeal, the plaintiff requested that the
administrator set out her statutory share. As we explain
herein, the defendant has failed to satisfy her burden
under any of these doctrines. Accordingly, we conclude
that the plaintiff is not barred from seeking to recover
her statutory share.
 A
Waiver
The defendant claims that the plaintiff waived her
right to recover her statutory share by first pursuing her
challenge to the decedent’s will. ‘‘Waiver is a question of
fact. . . . [W]here the factual basis of the court’s deci-
sion is challenged we must determine whether the facts
set out in the memorandum of decision are supported
by the evidence or whether, in light of the evidence
and the pleadings in the whole record, those facts are
clearly erroneous. . . . Therefore, the trial court’s con-
clusions must stand unless they are legally or logically
inconsistent with the facts found or unless they involve
the application of some erroneous rule of law material
to the case.’’ (Citations omitted; internal quotation
marks omitted.) AFSCME, Council 4, Local 704 v. Dept.
of Public Health, 272 Conn. 617, 622–23, 866 A.2d 582
(2005).
‘‘Waiver is the intentional relinquishment or abandon-
ment of a known right or privilege. . . . Waiver does
not have to be express, but may consist of acts or
conduct from which waiver may be implied.’’ (Citations
omitted; internal quotation marks omitted.) MSO, LLC
v. DeSimone, 313 Conn. 54, 64, 94 A.3d 1189 (2014). ‘‘In
other words, waiver may be inferred from the circum-
stances if it is reasonable to do so.’’ (Internal quotation
marks omitted.) Rosado v. Bridgeport Roman Catholic
Diocesan Corp., 292 Conn. 1, 58, 970 A.2d 656, cert.
denied sub nom. Bridgeport Roman Catholic Diocesan
Corp. v. New York Times Corp., 558 U.S. 991, 130 S.
Ct. 500, 175 L. Ed. 2d 348 (2009). ‘‘Waiver is based
upon a species of the principle of estoppel and where
applicable it will be enforced as the estoppel would be
enforced. . . . Estoppel has its roots in equity and
stems from the voluntary conduct of a party whereby
he is absolutely precluded, both at law and in equity,
from asserting rights which might perhaps have other-
wise existed . . . .’’ (Citation omitted; internal quota-
tion marks omitted.) AFSCME, Council 4, Local 704 v.
Dept. of Public Health, supra, 272 Conn. 623. ‘‘As a
general rule, both statutory and constitutional rights
and privileges may be waived.’’ (Internal quotation
marks omitted.) Pereira v. State Board of Education,
304 Conn. 1, 40, 37 A.3d 625 (2012).
The defendant’s claim fails because the plaintiff
timely elected her statutory share within the 150 day
time period specified in § 45a-436 (c). See footnote 1
of this opinion. Given that timely election, the trial court
properly concluded that the plaintiff’s decision to first
pursue her challenge to the validity of the will before
requesting that the administrator set out her share was
not sufficient evidence that she intentionally relin-
quished her right to the statutory share. Instead, the
court properly interpreted the plaintiff’s course of
action: the plaintiff chose to contest the will first, on
the basis that if she succeeded in her challenge, it would
be unnecessary for her to seek recovery of her statutory
share. If she was unsuccessful, however—as she was—
she could then recover her statutory share. Although
the plaintiff requested that the statutory share be set
out after her unsuccessful challenge to the validity of
the will, nothing in the language of the spousal share
statute suggests that a surviving spouse is required to
request that the share be set out in order to preserve
her right to the share. The only requirement imposed
on the plaintiff in order to secure her right to the statu-
tory share is to timely elect the share, and she complied
with that requirement. See General Statutes § 45a-436
(c).
B
Estoppel and Election of Remedies
The defendant claims that the plaintiff is barred both
by the doctrines of estoppel and election of remedies.
Under the doctrine of election of remedies, the defen-
dant contends that the intestate share that the plaintiff
would have received had her challenge to the will suc-
ceeded is mutually exclusive of the remedy provided
by the spousal share statute, because the right to a
statutory share presumes the existence of a valid will.
The defendant further claims that the trial court incor-
rectly relied on this court’s decision in DelVecchio v.
DelVecchio, 146 Conn. 188, 196, 148 A.2d 554 (1959), to
conclude that the choice between a statutory share and
an intestate one is an election of rights rather than
remedies. The defendant also claims that the plaintiff’s
decision to contest the decedent’s will before requesting
that the administrator set out her statutory share caused
the administrator to fail to set out the statutory share,
thus estopping the plaintiff from recovering the statu-
tory share.
The doctrines of estoppel and election of remedies
both require the defendant to prove detrimental reli-
ance.8 We have explained that ‘‘any claim of estoppel
is predicated on proof of two essential elements: the
party against whom estoppel is claimed must do or say
something calculated or intended to induce another
party to believe that certain facts exist and to act on
that belief; and the other party must change its position
in reliance on those facts, thereby incurring some injury.
. . . It is the burden of the party asserting a claim
of estoppel to establish the existence of the elements
essential to an estoppel . . . and whether that burden
has been satisfied in a particular case is an issue of
fact. . . . The trial court’s factual determination will
not be disturbed unless it is clearly erroneous.’’ (Cita-
tions omitted; internal quotation marks omitted.) Mid-
dlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681,
699, 590 A.2d 957 (1991). As for election of remedies,
the party relying on the doctrine is required to show
that ‘‘ ‘the remedies are inconsistent and the other party
materially changes his position in reliance on the mani-
festation.’ 3 Restatement (Second), Contracts § 378
(1981).’’ Connecticut Light & Power Co. v. DaSilva, 231
Conn. 441, 449, 650 A.2d 551 (1994).
Because the trial court’s factual finding that there
was ‘‘little to no support in the record for a conclusion
that the [defendant and the administrator] changed their
position in detrimental reliance on the plaintiff’s deci-
sion to contest the will’’ was not clearly erroneous, we
conclude that the plaintiff’s action is not barred by
either the doctrine of estoppel or the doctrine of elec-
tion of remedies. ‘‘A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed. . . . Because it is the trial court’s function
to weigh the evidence and determine credibility, we
give great deference to its findings. . . . In reviewing
factual findings, [w]e do not examine the record to
determine whether the [court] could have reached a
conclusion other than the one reached. . . . Instead,
we make every reasonable presumption . . . in favor
of the trial court’s ruling.’’ (Internal quotation marks
omitted.) Murtha v. Hartford, 303 Conn. 1, 12–13, 35
A.3d 177 (2011). In making its finding that there was
little or no support in the record to support the defen-
dant’s claim that there had been a change in position
based on the plaintiff’s decision to contest the will, the
court relied on the fact that, although the defendant
claimed that the failure to set out the statutory share
was based on the plaintiff’s pursuit of her challenge to
the will, the defendant and the administrator contend
that they were not required to set out the share until
the plaintiff requested that they do so. The defendant
has therefore admitted that she and the administrator
did not believe they were required to set out the share
until the plaintiff requested that it be set out. Given
that concession, the trial court’s conclusion that the
link between the failure to set out the share and the
ongoing litigation was ‘‘tenuous, at best’’ is not
clearly erroneous.
II
TAXES
In her cross appeal, the defendant argues that the trial
court improperly concluded that the plaintiff’s statutory
share must be calculated on the basis of the value of
the estate before the deduction of federal and state
estate taxes. The defendant contends that estate taxes
constitute ‘‘charges against the estate’’ pursuant to the
spousal share statute, and, therefore, that the plain lan-
guage of the statute requires that the statutory share
be calculated after the deduction of estate taxes from
the value of the estate. The amici argue in their briefs;
see footnote 6 of this opinion; that, although the phrase
‘‘charges against the estate’’ in the spousal share statute
is not defined in the statute, any ambiguity in the use
of that phrase is resolved when the spousal share statute
is understood in the context of Connecticut’s proration
statute; General Statutes § 12-401; and both the federal
and state marital deduction statutory provisions. See
26 U.S.C. § 2056 (a) and (b) (7); General Statutes § 12-
391 (f) (1). Specifically, the amici contend that those
related statutes clarify that the phrase ‘‘charges against
the estate’’ in the spousal share statute does not include
estate taxes. We agree with the amici.
The question of whether the phrase ‘‘debts and
charges against the estate’’ in § 45a-436 (a) includes
federal and state estate taxes, and therefore requires
that those taxes be deducted before calculating the
statutory share ‘‘presents a question of statutory inter-
pretation, over which we exercise plenary review,
guided by well established principles regarding legisla-
tive intent.’’ Connecticut Podiatric Medical Assn. v.
Health Net of Connecticut, Inc., 302 Conn. 464, 471,
28 A.3d 958 (2011); see Hartford/Windsor Healthcare
Properties, LLC v. Hartford, 298 Conn. 191, 197–98, 3
A.3d 56 (2010) (explaining plain meaning rule under
General Statutes § 1-2z and setting forth process for
ascertaining legislative intent). As directed by § 1-2z,
we begin with the statutory language. Section 45a-436
(a) provides: ‘‘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.’’ (Emphasis
added.)
Neither ‘‘debts’’ nor ‘‘charges’’ is defined in the spou-
sal share statute, and nothing in the statute’s language
clarifies whether estate taxes qualify as debts or charges
against the estate. Nor has this court previously under-
taken to construe those terms. Moreover, our review
of the use of the terms ‘‘debts’’ and ‘‘charges’’ in related
statutes does not resolve the apparent ambiguity. For
example, General Statutes § 45a-234, which sets forth
the powers that a fiduciary has in administering an
estate, includes the power of the fiduciary to ‘‘borrow
money and to assume indebtedness . . . for the pur-
pose of paying debts, taxes, administration expenses,
or other charges against the estate . . . .’’ General Stat-
utes § 45a-234 (8). The use of the word ‘‘other’’ suggests
that debts, taxes and administration expenses are all
different types of charges against the estate. Although
that language provides some support for reading the
term ‘‘charges’’ in the spousal share statute to include
taxes, § 45a-234 (8) also suggests that debts are sub-
sumed within charges, which is inconsistent with the
suggestion in the spousal share statute that debts and
charges are distinct categories. See General Statutes
§ 45a-436 (a).
General Statutes § 12-351 also suggests that taxes are
a type of charge or an administrative expense, providing
that ‘‘[t]he following expenses of administration shall
not be allowable deductions’’ against state succession
and transfer taxes, and including among the list of vari-
ous administrative expenses, not only taxes on the
estate, but also a variety of expenses incurred during
the settlement of the estate, including ‘‘expenses of
care, maintenance or repair of real estate and buildings
accrued subsequent to the death of the transferor . . .
interest on obligations of the transferor or of the estate,
which interest accrued subsequent to the death of the
transferor . . . [and] all other charges and expenses
of administration properly allocable against income.’’
This language, particularly the use of the phrase ‘‘all
other charges,’’ provides further support for under-
standing taxes as simply one type of a charge or admin-
istrative expense of the estate. Similarly, § 38.2 (d) (2)
of the Probate Court Rules requires that a fiduciary’s
account must include ‘‘a schedule listing the total
amount of administration expenses in each major cate-
gory, including, but not limited to, fiduciary fees, attor-
ney’s fees, accounting expenses, probate fees, taxes,
probate bond premiums, publication expenses and
other expenses . . . .’’ (Emphasis added.)
Other statutes, however, consistently treat estate
taxes as distinct from debts or charges. See, e.g., Gen-
eral Statutes § 12-722 (n) (2) (listing separately ‘‘debts,
taxes and expenses of administration’’); General Stat-
utes § 45a-235 (19) (listing estate taxes and administra-
tion expenses under different clauses); General Statutes
§ 45a-468l (listing separately ‘‘claims, taxes and
expenses of administration’’); Probate Court Rules
§ 37.1 (a) (9) (requiring fiduciary to provide statement
that ‘‘all funeral expenses, administration expenses,
taxes and claims have been paid’’). Related statutes
that directly address estate debts, charges and taxes,
accordingly, do not resolve the question of whether
taxes are a type of debt or charge against an estate for
purposes of the spousal share statute.
Connecticut’s proration statute, however, when
understood in conjunction with the state and federal
marital deductions, clarifies that the surviving spouse’s
statutory share must be calculated prior to the deduc-
tion of any estate taxes. Specifically, § 12-401 (a) pro-
vides in relevant part that ‘‘except when a testator
otherwise directs in his will,’’ the taxes of the estate
must be ‘‘equitably prorated among the persons inter-
ested in the estate to whom . . . any benefit accrues.
Such proration shall be made in the proportion, as near
as may be, that the value of the property, interest or
benefit of each such person bears to the total value of
the property, interests and benefits received by all such
persons interested in the estate, except that, in making
such proration, allowances shall be made for any
exemptions granted by the act imposing the tax and
for any deductions allowed by such act for the purpose
of arriving at the value of the net estate . . . .’’
(Emphasis added.)
Under both federal and state estate tax provisions,
a surviving spouse is entitled to a marital deduction
with respect to her statutory share. The federal marital
deduction is set forth in 26 U.S.C. § 2056. Subsection (a)
of 26 U.S.C. § 2056 sets forth the general rule, providing:
‘‘For purposes of the tax imposed by section 2001, the
value of the taxable estate shall, except as limited by
subsection (b), be determined by deducting from the
value of the gross estate an amount equal to the value
of any interest in property which passes or has passed
from the decedent to his surviving spouse, but only to
the extent that such interest is included in determining
the value of the gross estate.’’ Section 2056 (b) (7) of
title 26 of the United States Code, entitled ‘‘Election
with respect to life estate for surviving spouse,’’ clarifies
that subsection (a) applies to a surviving spouse’s statu-
tory share, and provides in relevant part: ‘‘In the case
of qualified terminable interest property . . . (i) for
purposes of subsection (a), such property shall be
treated as passing to the surviving spouse . . . .’’ Our
marital deduction provision, § 12-391 (f) (1), tracks the
federal deduction: ‘‘For purposes of the tax imposed
under this section, the value of the Connecticut taxable
estate shall be determined taking into account all of
the deductions available under the Internal Revenue
Code of 1986, specifically including, but not limited to,
the deduction available under Section 2056 (b) (7) of
said code for a qualifying income interest for life in a
surviving spouse.’’
We addressed the effect of the proration and marital
deduction statutes on the taxation of an estate in New
York Trust Co. v. Doubleday, 144 Conn. 134, 128 A.2d
192 (1956). In that case, the decedent’s will divided the
residue of the estate into five equal shares, and provided
that the decedent’s widow would receive one of those
shares. Id., 137. The will provided that all estate taxes,
including those attributable to specific devises, would
be paid from the residuary estate. Id. In order to resolve
a disagreement between the beneficiaries as to how the
tax burden should be allocated among them in light
of the proration and marital deduction statutes, the
executors brought an action for construction of the will.
Id., 137–38. Specifically, the surviving spouse contended
that because she was entitled to the marital deduction,
the proration statute required that no portion of the
burden of the estate taxes should be allocated to her,
and that the tax burden should be equitably prorated
among the remaining residuary legatees. Id., 139.
Accordingly, she claimed that the residue should be
divided first into five equal parts, then the tax burden
should be allocated to the other four shares of the
residue. Id., 143. The other beneficiaries, however, con-
tended that the estate taxes should be deducted from
the entire residue, which then should be divided into
five equal shares. Id.
This court began its analysis with the observation
that the proration statute was enacted in 1945. Id., 139.
The court explained that ‘‘[p]rior to that time, the bur-
den of federal and state estate taxes rested on the estate
as a whole and, in the absence of a directive in the will
to the contrary—a situation which through ignorance,
thoughtlessness or carelessness often prevailed—the
taxes were paid out of the residuary estate. . . . This
created many instances of hardship upon and injustice
to widows and children, who, as the natural objects
of a testator’s bounty, were customarily the residuary
legatees and, as such, were frequently saddled with
the entire tax, while other beneficiaries, more distantly
related to the testator or not related at all, paid no taxes
at all. The proration statute was contrived to circumvent
these instances of hardship and injustice. It is not a
taxing statute. . . . It assumes that a tax either has
been or will be paid in conformity with the tax law and
then undertakes to determine upon whom the ultimate
burden of the tax shall be placed. In short, it takes over
where the tax statute leaves off.’’ (Citations omitted.)
Id., 140. The proration statute, therefore, had shifted
the previous presumption. After its passage, a will’s
silence regarding the allocation of the tax burden would
trigger the operation of the proration statute to equita-
bly prorate the tax burden among all the legatees,
including those who had been left specific devises.
In Doubleday, because the testator had specified that
all estate taxes should be paid from the residuary, this
court concluded that the will prevented the proration
statute from requiring equitable proration as to the spe-
cific devises. Adhering to the principle, however, that
because of its burden shifting effect, ‘‘a testamentary
directive against the prorating of taxes must be clear
and unambiguous,’’ we declined to read the will’s tax
provision broadly, and concluded that it did not prevent
the proration statute from applying as to the allocation
of the tax burden among the residuary legatees. Id.,
141–42. We recognized that, but for the marital deduc-
tion, the required outcome would be a simple matter—
the proration statute would require that the tax burden
be borne equally by the five residuary legatees.
The proration statute specifically requires, however,
that in determining the net estate for purposes of mak-
ing the proration, allowance must be made for any
deductions allowed by the statute imposing the tax.
General Statutes § 12-401 (a). In light of the marital
deduction, therefore, this court held that the residue
first had to be divided into five equal shares, then the
estate taxes were required to be imposed on the other
four shares, with the widow bearing no part of the tax
burden. We observed that requiring the taxes to be paid
before dividing the shares would have allowed the other
beneficiaries ‘‘to enjoy the benefit of the marital deduc-
tion to the same extent as [would] the widow,’’ a result
that is prohibited by the proration statute. New York
Trust Co. v. Doubleday, supra, 144 Conn. 143. We
explained further: ‘‘Only through the allocation of the
entire amount of the marital allowance to the value of
the widow’s bequest will the intent as well as the spirit
of the proration statute be met, for the statute is based
on the equitable principle that the estate taxes should
be borne by those whose bequests contribute to the tax
burden and, conversely, that all those whose legacies do
not in any way create or add to that burden should
not be required to bear it.’’ (Internal quotation marks
omitted.) Id., 144.
Our reasoning in Doubleday applies equally to the
plaintiff’s statutory share in the present case. The pur-
pose of the marital deduction is to benefit the surviving
spouse, and allowing other persons with an interest in
the estate to share in that benefit would be contrary to
that purpose, and, therefore, would also contravene the
legislature’s intent in the proration statute.9 We con-
clude, therefore, that the plaintiff’s statutory share must
be calculated based on the pretax value of the estate.
III
TIMING OF VALUATION
We next address the plaintiff’s claim that the trial
court improperly concluded that the value of the statu-
tory share should be calculated based on the value of
the estate as of the date of distribution, rather than the
value of the estate at the time of the decedent’s death.
The plaintiff argues that her interest properly is calcu-
lated based on the value of the decedent’s estate at the
time of his death, not the time of distribution. The
plaintiff relies on the language in the spousal share
statute, which defines the interest created by the statu-
tory share as ‘‘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.’’ (Emphasis
added.) General Statutes § 45a-436 (a). The defendant
contends that the plaintiff’s statutory share entitles her
to a life estate in a fractional share of the value of
the decedent’s estate, and, therefore, that the plaintiff’s
statutory share should be based on the value of the
estate at the time of distribution rather than at the time
of the decedent’s death. We agree with the defendant
that the value of the plaintiff’s statutory share should
be calculated on the basis of the value of the estate as
of the time of distribution.
The question of whether the statutory share created
by the spousal share statute is one based on the value
of the estate at the time of death or at the time of
distribution presents a question of statutory interpreta-
tion. We are therefore guided by the same principles
that governed our analysis in part II of this opinion.
See Hartford/Windsor Healthcare Properties, LLC v.
Hartford, supra, 298 Conn. 197–98. Accordingly, as dic-
tated by § 1-2z, we turn first to the statutory language.
The spousal share statute defines the statutory share
as ‘‘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.’’ General Statutes § 45a-
436 (a).
The statutory language provides conflicting evidence
of legislative intent. We first observe that the surviving
spouse’s statutory share is limited to a life estate in the
real and personal property ‘‘passing under the will
. . . .’’ This court previously has interpreted that phrase
to exclude assets such as a trust savings account,
because in such an account the transfer of ownership
from the decedent to the beneficiary is not effected by
way of a will but by virtue of the terms of the account
itself, which specifies that upon the depositor/trustee’s
death, the funds would be payable to the named benefi-
ciary. Dalia v. Lawrence, 226 Conn. 51, 57, 627 A.2d
392 (1993). We have not considered whether the phrase
‘‘passing under the will’’ suggests a specific time of
valuation of the decedent’s estate for the purpose of
determining the amount of a spouse’s statutory share,
by, for instance, requiring that the estate be valued as of
the time that ownership of the property has transferred.
One logical measure of the transfer of ownership is
when title to the property vests in the beneficiaries. The
statutory share is based on both the real and personal
property ‘‘passing under the will.’’ Legal and equitable
title to real and personal property vests in the benefici-
aries at different times. See Gray v. Goddard, 90 Conn.
561, 568, 98 A. 126 (1916) (‘‘[t]he legal title to real prop-
erty upon the death of the owner vests immediately in
the heir or legatee, while the legal title to personal
property passes to the executor or administrator, and
such property is to be used for the payment of debts and
the remainder distributed to the heirs’’). Accordingly,
because § 45a-436 (a) indicates that the statutory share
is one in both the ‘‘real and personal property passing
under the will,’’ we do not read the phrase ‘‘passing
under the will’’ to restrict the timing of the valuation
of the decedent’s estate to the time at which legal and
equitable title vests in the beneficiaries.
The plaintiff contends that the phrase ‘‘in value . . .
at the time of his or her death’’; General Statutes § 45a-
436 (a); indicates a legislative intent to value the statu-
tory share as of the time of the decedent’s death. We
do not read that phrase to clearly indicate an intent
regarding the time of the valuation of the estate for
purposes of calculating the statutory share. An equally
rational reading of the language is that it is intended
to limit the scope of the share to property that was
owned by the decedent at the time of his or her death.
Nothing in the statutory language compels the inference
that the property’s value at the time of death should
be controlling for the calculation of the statutory share.
The phrase ‘‘in value’’ was incorporated into the statu-
tory language when the legislature abolished the wid-
ow’s right of dower and replaced it with the spouse’s
right to elect a statutory share. See Public Acts 1877,
c. 114. Pursuant to the right of dower, a widow had the
‘‘right . . . during her life, in one-third part of the real
estate of which her husband died possessed in his own
right . . . .’’ General Statutes (1875 Rev.) tit. 18, c. 11,
art. 4, § 1. After the enactment of chapter 114 of the
1877 Public Acts, a surviving spouse had a right to a
one-third life estate, not only in the decedent’s real
estate, but in the entire estate, including both real and
personal property. Public Acts 1877, c. 114, § 3. The
term ‘‘in value’’ is a practical consequence of extending
the interest of the surviving spouse to the entire estate,
which instantly rendered more complex the process of
dividing the assets of the estate in order to determine
the one-third share on which to base the statutory share
of the surviving spouse. Thus, the phrase ‘‘in value,’’
rather than indicating a legislative intent to base the
statutory share on the value of the estate at the time
of the decedent’s death, reflects a recognition that in
calculating the share, it will be necessary to ascertain
the ‘‘value’’ of a variety of different types of assets.10
Another phrase in the spousal share statute, however,
suggests a specific time frame for valuing the estate.
That phrase specifically provides that the statutory
share is calculated ‘‘after the payment of all debts and
charges against the estate.’’11 General Statutes § 45a-
436 (a). This language provides clear support for the
conclusion that the base value for the one-third share
is the value at the time of distribution. The total amount
of the debts and charges against an estate cannot be
conclusively determined, and therefore paid, until
sometime near the settlement of the estate, when the
final account is filed by the fiduciary. See Probate Court
Rules § 38.2 (d) (2) (requiring, for all fiduciary account
filings, including final account, ‘‘a schedule listing the
total amount of administration expenses in each major
category, including, but not limited to, fiduciary fees,
attorney’s fees, accounting expenses, probate fees,
taxes, probate bond premiums, publication expenses
and other expenses’’). Because charges against the
estate may continue to accrue during the settlement
of the estate, it would not be possible to definitively
determine the surviving spouse’s share until the final
account is filed. The phrase therefore provides strong
support for the conclusion that the surviving spouse’s
share must be set out at the time of distribution.
The spousal share statute, which allows the court
to appoint distributors to set out the statutory share;
General Statutes § 45a-436 (a); see footnote 1 of this
opinion; further reinforces the conclusion that the legis-
lature intended that the statutory share be set out at
the time of distribution. We have recognized that the
duties of distributors ‘‘are statutory and ministerial; and
they distribute the estate as they find it in the hands
of the executor or administrator after the allowance of
the final account.’’ Cone’s Appeal from Probate, 68
Conn. 84, 90, 35 A. 781 (1896). If the statutory share
were intended to be set out prior to distribution, then
the statute could not allow the court to appoint distribu-
tors to set out the share. If there were no other language
in the spousal share statute relevant to the question of
the legislature’s intent, therefore, our task would be a
simple one—absent contrary language, we would con-
clude that the language of the spousal share statute
plainly and unambiguously indicates that the statutory
share is to be calculated on the basis of the estate’s
value at the time of distribution.
There is, however, contrary language in the spousal
share statute. Conflicting evidence of legislative intent
is provided by subsection (d) of § 45a-436, which, when
read together with General Statutes § 45a-320 (a), sup-
ports the conclusion that the legislature intended to
allow the statutory share to be set out prior to distribu-
tion, and, therefore, that the base value for the statutory
share cannot be the value of the estate at the time
of distribution. Specifically, the spousal share statute
provides: ‘‘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 expira-
tion of the time for which the support allowance is
made.’’ (Emphasis added.) General Statutes § 45a-436
(d). Section 45a-320 (a) provides in relevant part: ‘‘The
Court of Probate may allow out of any real or personal
estate of a deceased person in settlement before such
court . . . such amount as it may judge necessary for
the support of the surviving spouse or family of the
deceased during the settlement of the estate.’’ (Empha-
sis added.) An allowance of support to a surviving
spouse pursuant to § 45a-320 is available only during
the settlement of the estate. The language of § 45a-
320 (a) suggests that it would be possible, but for the
prohibition in § 45a-436 (d), for a surviving spouse’s
statutory share to be set out prior to the expiration of
a support allowance.
 Interpreting the spousal share statute to require that
the statutory share be set out only at distribution, there-
fore, would render subsection (d) of § 45a-436 superflu-
ous. See Wilkins v. Connecticut Childbirth & Women’s
Center, 314 Conn. 709, 719, 104 A.3d 671 (2014) (‘‘in
construing statutes, we presume that, there is a purpose
behind every sentence, clause or phrase used in an act,
and that no part of a statute is superfluous’’). That is,
unless it is possible for the statutory share to be set
out prior to the settlement of the estate at distribution,
there would be no need to prohibit a surviving spouse
from taking his or her statutory share ‘‘until the expira-
tion of the time for which the support allowance is
made.’’ General Statutes § 45a-436 (d). Accordingly, it
must be at least possible for the statutory share to be
set out prior to the final settlement of the estate, and,
therefore, prior to the time of distribution. We observe,
however, that although the statutory language supports
the conclusion that it must be possible for the statutory
share to be set out prior to distribution, nothing in the
statutory language requires that the share be set out at
the time of the decedent’s death, or provides support
for the plaintiff’s contention that the statutory share
should be based on the value of the estate at the time
of the decedent’s death. Nonetheless, because the con-
flicting provisions render the meaning of the spousal
share statute ambiguous with respect to the appropriate
time to value the estate for purposes of determining
the statutory share, we turn to extratextual sources
for guidance.
We begin by observing that there are three alternative
theories by which a surviving spouse may claim entitle-
ment to a share in the decedent’s estate. The availability
of those entitlements depends on the facts of the case.
The first two are available only if there is a will. If there
is a will and if the surviving spouse has been named
as a beneficiary of the will, he or she may elect to
inherit under the will, or, in the alternative, the surviving
spouse may elect to take the statutory share pursuant
to the spousal share statute. The spousal share statute
specifically provides that these two entitlements are
mutually exclusive. If a surviving spouse elects to take
his or her share pursuant to the will, that share is taken
in lieu of the statutory share, and vice versa. General
Statutes § 45a-436 (b); see footnote 1 of this opinion.
If the surviving spouse is not named as a beneficiary
under the will, the spouse may elect to take the statutory
share. See General Statutes § 45a-436 (a). If there is no
will, or, to the extent that a will does not dispose of
the entire estate, the surviving spouse is entitled to an
intestate share. See General Statutes § 45a-437.
If a surviving spouse elects to take his or her share
under the will, our law is clear. This court has long
adhered to the rule that ‘‘distribution is to be made
according to the value of the property at the time of
distribution.’’ Callahan v. Peltier, 121 Conn. 106, 114,
183 A. 400 (1936); see also Probate Court Rules § 37.4
(a) (‘‘[e]xcept as provided in subsection [b], the fidu-
ciary shall report distributions on a financial report at
fair market value as of the date of distribution’’). The
value of a surviving spouse’s devised fractional share
in the testator’s estate, therefore, is based on the value
of the estate at the time of distribution.
This court has explained the equitable principles
underlying this rule. In Clement v. Brainard, 46 Conn.
174, 175–76 (1878), the dispute centered on the timing
of the valuation of the residue of the testator’s estate,
for purposes of calculating the two-fifths share that the
testator had left to his grandchildren. The court rejected
a claim that the estate’s value should be determined
based on the value reported in a supplemental interim
accounting. Id., 178. The appropriate timing of valua-
tion, the court held, was at the time of distribution. Id.,
180. As a practical matter, the court observed, because
the testator’s will granted an annuity to his sister during
her natural life, the amount of the residue could not be
determined until her death, an event that had not yet
occurred at the time of the supplemental interim
accounting. Id., 179. More importantly, the court con-
cluded that it would be ‘‘unreasonable and unjust, as
well as repugnant to the provisions of the will and of
the law, to decree the payment to the petitioners, before
distribution, of their share of the estate in money.’’ Id.,
180. The court explained that between the date of the
supplemental interim accounting and the date when the
distribution would be made, ‘‘the estate might have
greatly depreciated in value without any fault on the
part of the [fiduciary]. And if such was the fact, it would
be highly inequitable to compel him to bear the loss
occasioned by the depreciation. On the other hand, if
the property appreciated in value during the period
mentioned, the petitioners would be entitled to and
should have the benefit of the appreciation.’’ Id.; see
also Chase National Bank v. Schleussner, 117 Conn.
370, 375–76, 167 A. 808 (1933) (‘‘Determination of the
net estate, if made by distributors appointed by the
Court of Probate, would be based upon the value of
the assets comprising the estate as found by them at
the time the distribution was made; Platt v. Platt, 42
Conn. 330, 346 [1875]; and it is significant that in one
case where the power to divide an estate was left by
a testator to his widow and she died before completing
it, we held that distributors appointed to complete the
division should proceed upon the values as existing
when they made it. Walker v. Upson, [74 Conn. 128,
131, 49 A. 904 (1901)].’’).
This court has applied the same rule to the distribu-
tion of an intestate share of an estate. Walker v. Upson,
supra, 74 Conn. 131 (portion of estate passing by intes-
tacy distributed per stirpes according to value of intes-
tate estate at time of distribution). The statutory
provisions governing intestate distribution confirm that
the surviving spouse’s intestate share is based on the
value of the estate at the time of distribution. Section
45a-437 (a) provides that the surviving spouse’s share
of the intestate estate varies depending on who else
has survived the decedent, including parents, any chil-
dren of the decedent who are also children of the surviv-
ing spouse, and any children of the decedent who are
not also children of the surviving spouse. Although
§ 45a-437 does not specify the time at which the
spouse’s share should be distributed, General Statutes
§ 45a-438 (a), which governs the intestate distribution
to children, provides that distribution shall be made
after the distribution to the surviving spouse, and
according to the estate’s ‘‘value at the time of distribu-
tion . . . .’’12
In light of the requirement in § 45a-438 (a), that the
children’s intestate shares must be valued as of the
time of distribution, reading § 45a-437 to mean that the
surviving spouse’s share should be based on the estate’s
value at the time of the decedent’s death would lead
to absurd results. For instance, § 45a-437 (4) provides
that ‘‘[i]f there are surviving issue of the decedent one
or more of whom are not issue of the surviving spouse,’’
the share that the surviving spouse shall take is ‘‘one-
half of the intestate estate absolutely.’’ Because there
is no guarantee that the value of the estate will not
appreciate or depreciate between the date of the dece-
dent’s death and the time of distribution, the meaning
of ‘‘one-half’’ becomes unclear if the spouse’s share is
calculated as of the time of the decedent’s death, while
the children’s share is valued as of the date of distribu-
tion. The one-half share could ultimately be either
greater or lesser than an actual one half of the estate.
Even more problematic, § 45a-437 (a) (1) provides that
‘‘[i]f there is no surviving issue or parent of the dece-
dent,’’ the surviving spouse shall take ‘‘the entire intes-
tate estate absolutely . . . .’’ If the spouse’s share is
valued as of the time of the decedent’s death, and the
value of the estate appreciates between that date and
distribution, the spouse’s entitlement to the ‘‘entire
intestate estate’’ would be thwarted.
We cannot discern any reasonable basis for valuating
a surviving spouse’s statutory share at a different time
than a surviving spouse’s intestate and testate shares.
Like those shares, the statutory share of a surviving
spouse must be calculated on the basis of the value of
the estate at the time of distribution in order to avoid
‘‘unreasonable and unjust’’ results. Clement v. Brain-
ard, supra, 46 Conn. 180. At the time of the decedent’s
death, it cannot be known how long it will take until
the estate settles and the testate shares are distributed.
It also would be impossible accurately to predict at the
time of the decedent’s death whether and how much
the value of the decedent’s estate will appreciate or
depreciate. Accordingly, because the value of all other
shares is based on the value of the estate at the time
of distribution, calculating the statutory share on the
basis of the value of the estate at the time of the dece-
dent’s death would yield the result that the surviving
spouse’s statutory share of a life estate in ‘‘one-third’’
of the value of the decedent’s estate could ultimately
amount to either significantly greater or lesser than
one-third in relation to the shares of the will’s benefici-
aries. If the value of the decedent’s estate depreciated
greatly between the time of his death and the time of
distribution, it would even be possible for the benefici-
aries of the will to receive nothing. Such a possibility
would be contrary to basic principles of equity, and
would also be contrary to the principle that when a
surviving spouse ‘‘elects to take a statutory share in
lieu of provision made for [her] by will, in setting off
to [her] that share, the intent of the [testator] must be
as little disturbed as is possible.’’ Shannon v. Eno, 120
Conn. 77, 90–91, 179 A. 479 (1935).
The plaintiff’s arguments to the contrary are unper-
suasive. She contends that the policy principles underly-
ing the creation of the surviving spouse’s right to a
statutory share justify a conclusion that the statutory
share should be calculated based on the value of the
estate at the time of the decedent’s death. It is true that
the spousal share statute has its origins in Connecticut’s
modified form of the right of dower,13 which, we have
explained, had the primary purpose of preventing hus-
bands from entirely or substantially disinheriting their
wives by will, and, in such cases, to make ‘‘suitable
provision . . . for the maintenance and comfortable
support of widows, after the decease of their husbands
. . . .’’ Brown’s Appeal, 72 Conn. 148, 153, 44 A. 22
(1899). The surviving spouse’s statutory share first
appeared in our law in 1877, when the legislature passed
chapter 114 of the 1877 Public Acts (act). As we have
explained, that act effected radical changes in the prop-
erty rights of married women, including the abolition
of the widow’s right of dower, which was replaced with
the gender neutral, surviving spouse’s right to elect
against the decedent’s will. Public Acts 1877, c. 114;
see Mathewson v. Mathewson, 79 Conn. 23, 25–36, 63
A. 285 (1906) (describing passage and effect of act).
After the passage of the act, both husbands and wives
who survived their spouses were entitled to the same
statutory rights to the decedent’s estate. See General
Statutes (1887 Rev.) § 623.14
This court has recognized that the purpose of the
statutory share, like the former right to dower, is ‘‘for
the protection of the surviving spouse in making suit-
able provision for his [or her] maintenance and support
. . . .’’ Bankers Trust Co. v. Greims, supra, 110 Conn.
48. The plaintiff incorrectly infers, however, that the
best and only way to provide for that protection is to
determine the statutory share on the basis of the estate’s
value at the time of the decedent’s death. As we have
explained, that valuation could result in a surviving
spouse receiving considerably less than the one-third
life estate contemplated by the spousal share statute.
Additionally, the plaintiff’s policy argument fails to
account for this court’s decision in Greims, in which
we held that a surviving spouse is entitled to income
on his or her share from the date of the decedent’s
death. Id. That entitlement, and the support and mainte-
nance that it may provide to a surviving spouse, is not
dependent on the statutory share being based on the
value of the estate as of the time of the decedent’s
death. Finally, although the purpose of the statutory
share is to provide for the support and maintenance of
the surviving spouse, the spousal share statute is not
the primary means of protecting the spouse’s support
needs during the settlement of the estate. That purpose
is served by § 45a-320, which affords the Probate Court
significant discretion in fashioning an appropriate sup-
port allowance to meet the needs of the surviving
spouse and/or the family of the decedent during the
settlement of the estate.15
The plaintiff also contends that determining the value
of the surviving spouse’s statutory share on the basis of
the estate’s value at the time of distribution improperly
leaves the estate open to manipulation to defeat the
statutory share of the surviving spouse.16 That claim
fails to account both for the laws governing a fiduciary’s
duty to the estate and the authority of the Probate
Court to oversee the settlement of an estate. First, the
fiduciary charged with management of the estate’s
assets during the settlement of the estate owes a duty
of loyalty to the estate. That duty requires the fiduciary
to represent the rights of both beneficiaries and a surviv-
ing spouse who elects against the will. See Cadle Co.
v. D’Addario, 268 Conn. 441, 455, 844 A.2d 836 (2004)
(‘‘[a]n executrix has a fiduciary responsibility to main-
tain an undivided loyalty to the estate . . . and must
diligently represent the rights of the heirs and distribu-
tees and also those of creditors’’ [citation omitted; inter-
nal quotation marks omitted]); Hall v. Schoenwetter,
239 Conn. 553, 559, 686 A.2d 980 (1996) (‘‘an executrix
must remain loyal to the estate that she is administering
and must not act out of self-interest or for the interests
of parties other than the heirs, distributees, and credi-
tors of the estate’’). If the fiduciary acts in breach of
that duty, the surviving spouse may bring an action on
that basis. See Cadle Co. v. D’Addario, supra, 455.
Second, the Probate Court has broad powers to over-
see the settlement of estates. For example, pursuant
to General Statutes § 45a-139, a fiduciary is generally
required to file a bond with the Probate Court. We have
explained that ‘‘[t]he fiduciary’s faithful performance
of his legal duties is the condition on which a probate
bond is executed; General Statutes § 45a-139 (b); and,
accordingly, the failure of a fiduciary, such as a conser-
vator, to perform those duties faithfully results in a
breach of the bond.’’ Jewish Home for the Elderly of
Fairfield County, Inc. v. Cantore, 257 Conn. 531, 538,
778 A.2d 93 (2001). The fiduciary also must file an inven-
tory of all the property of the decedent with the Probate
Court. General Statutes § 45a-341 (a). The purpose of
the inventory is to protect ‘‘those interested in the estate
as distributees or creditors,’’ by providing them with the
necessary information to ascertain their rights. Lynch v.
Skelly, 138 Conn. 376, 378, 85 A.2d 251 (1951); see also
G. Wilhelm et al., Settlement of Estates in Connecticut
(3d Ed. 2015) § 4:1, pp. 4-3 through 4-4. The Probate
Court also has the power to ‘‘call executors [and] admin-
istrators . . . to account concerning the estates
entrusted to their charge . . . .’’ General Statutes
§ 45a-98 (a) (6). Finally, the Probate Court has the
authority to remove a fiduciary pursuant to General
Statutes § 45a-242 (a).
IV
INCOME DUE ON THE STATUTORY SHARE
The plaintiff next claims that the trial court improp-
erly concluded that, with respect to the period prior to
the date of distribution, she was entitled to the average
yield of one third of the estate during that time. The
plaintiff contends that because the estate has not earned
a positive income since the decedent’s death, she is
entitled instead to a ‘‘reasonable rate of return’’ for the
period between the decedent’s death and the date when
the statutory share is set out. We disagree. This court
has directly addressed this issue in Bankers Trust Co.
v. Greims, supra, 110 Conn. 48, in which we expressly
held that as to a surviving spouse’s statutory share,
‘‘[t]he rate of the income from the date of death to the
actual setting out of the third will be the average yield
of the estate for this period.’’ Although the plaintiff
notes that the estate that was at issue in Greims actually
earned a positive income, we did not predicate our
holding on that fact, or in any way suggest that our
holding was limited to the factual circumstances of
the case.
V
APPOINTMENT OF DISTRIBUTORS
Finally, the plaintiff claims that the trial court improp-
erly concluded that the Probate Court did not abuse its
discretion in appointing distributors. The plaintiff does
not cite to any authority for her claim that the appoint-
ment of distributors constituted an abuse of discretion,
but merely asserts that because, in her view, the duties
of the distributors in the present case would be ‘‘far
from ‘statutory and ministerial,’ ’’ the court should not
have appointed the distributors. The spousal share stat-
ute clearly grants the Probate Court the authority to
act within its discretion to appoint distributors. General
Statutes § 45a-436 (e); see footnote 1 of this opinion.
The plaintiff has not made any claim sufficient to sug-
gest that the Probate Court’s appointment of distribu-
tors constituted an abuse of that discretion. We agree
with the trial court’s observation that, because the Pro-
bate Court grounded its decision on the conten-
tiousness between the parties of this estate, the
appointment of distributors was appropriate.
The judgment is affirmed.
In this opinion the other justices concurred.
1
General Statutes § 45a-436 provides: ‘‘(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.
‘‘(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.
‘‘(c) The surviving spouse, or the conservator or guardian of the 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.
‘‘(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.
‘‘(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.
‘‘(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.
‘‘(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 abandon-
ment to the time of the other’s death.
‘‘(h) The provisions of this section shall apply to estates of all persons
dying on or after July 1, 1985.’’
We note that although § 45a-436 was amended subsequent to the events
underlying this appeal; see Public Acts 2013, No. 13-81, § 6; the changes
enacted by the legislature are not relevant to the issues present on appeal.
In the interest of simplicity, we refer to the current revision of the statute.
2
For convenience, all references in this opinion to the defendant refer
both to Patten individually and in her capacity as a trustee, unless otherwise
indicated. Where appropriate, we refer to Patten in her individual capacity
by name.
The other defendants named in the complaint, Nicole M. Paul, Patten’s
daughter, Donat C. Marchand, administrator of the estate of Albert A. Garo-
falo, and David M. Lehn, Sandra W. Bisset, and Timothy W. Crowley, the
distributors appointed by the Probate Court, are not parties to this appeal.
3
The plaintiff appealed, and the defendant cross appealed, from the judg-
ment of the trial court to the Appellate Court. On October 2, 2013, this court
transferred the appeal to itself pursuant to General Statutes § 51-199 (c)
and Practice Book § 65-1.
4
Patten originally had served as executrix of the estate, until the Probate
Court removed her upon the plaintiff’s petition, and appointed Marchand
as administrator. Dinan v. Marchand, supra, 279 Conn. 562. For ease of
discussion, when referring to actions in the administration of the estate,
we use the term ‘‘administrator’’ to refer to the fiduciary managing the estate.
5
The appeal from the February 16, 2010 decree was consolidated in the
trial court with three other appeals that the plaintiff had taken from decrees
of the Probate Court in this matter. The three appeals, Docket Nos. CV-09-
4023634-S, CV-11-6012933-S and CV-12-6016447-S, challenged the Probate
Court’s decrees approving the administrators’ interim and final accountings
and investments, and allowing attorney’s fees to be deducted from the
defendant’s share of the estate. The trial court affirmed the decision of the
Probate Court as to each of those decrees, none of which is challenged in
this appeal.
6
After oral argument before this court, we invited the Connecticut Bar
Association and Jeffrey A. Cooper, a professor of law at Quinnipiac Univer-
sity School of Law, to file briefs as amici curiae, to address two questions.
First, ‘‘[w]hether a surviving spouse’s elective ‘statutory share’ under . . .
§ 45a-436 should be determined on the basis of the value of the property
subject to distribution at the time: (a) of the decedent spouse’s death; (b)
the surviving spouse’s election of the statutory share; or (c) the statutory
share is set out.’’ Second, ‘‘[w]hether state and federal estate taxes are ‘debts
and charges against the estate’ that must be paid prior to calculating a
surviving spouse’s statutory share under . . . § 45a-436 (a).’’
Both parties accepted this court’s invitation, and filed amicus briefs, in
which they both answered that: (1) the statutory share should be valued as
of the date that the statutory share is set out; and (2) state and federal
estate taxes are neither debts nor charges against the estate, and should
not be deducted prior to calculating the statutory share. Thereafter, this
court granted the plaintiff’s request to file a supplemental brief in response
to the amicus briefs.
7
At the trial court, the defendant also relied on the doctrine of laches.
The defendant does not challenge the trial court’s rejection of that claim
on appeal.
8
Because we conclude that the defendant failed to demonstrate detrimen-
tal reliance as required pursuant to the doctrine of election of remedies,
we need not address her argument that the trial court improperly character-
ized the plaintiff’s election of her statutory share as an election among
different rights rather than remedies.
9
In arguing that the estate taxes constitute ‘‘charges against the estate’’
pursuant to the spousal share statute, and, therefore, that the plaintiff’s
statutory share should be calculated based on the posttax value of the estate,
the defendant relies on a number of decisions that predated the proration
statute, and are, therefore, inapposite. See, e.g., Bankers Trust v. Greims,
supra, 110 Conn. 36; Corbin v. Townshend, 92 Conn. 501, 103 A. 647 (1918);
Goodwin v. Chaffee, 4 Conn. 163 (1822).
10
The plaintiff also asserts that the values reported on federal estate tax
forms should be used as the basis for determining the statutory share. She
relies on 26 U.S.C. § 2031, the requirements of which govern the completion
of Internal Revenue Service form 706, the United States Estate (and Genera-
tion-Skipping Transfer) Tax Return. Specifically, 26 U.S.C. § 2031 (a) pro-
vides that ‘‘[t]he value of the gross estate of the decedent shall be determined
by including to the extent provided for in this part, the value at the time of
his death of all property, real or personal, tangible or intangible, wherever
situated.’’ The fact that a decedent’s estate is valued as of the time of his
death for tax purposes, however, does not require that the plaintiff’s statutory
share be calculated based on the estate’s value at that time. As we explain
herein, it is the value of the estate at the time of distribution that controls
for purposes of determining the statutory share.
11
In an apparent attempt to minimize the significance of this language,
the plaintiff cites to Cannon v. Cannon, 111 Conn. 589, 151 A. 166 (1930).
In that case, this court interpreted a provision of a testator’s will bequeathing
a life estate of one third of his property to his wife ‘‘ ‘[a]fter the payment
of [his] just debts and funeral expenses . . . .’ ’’ Id., 592. This court rejected
the executor’s interpretation of that language who claimed that the value
of several legacies made to others should be deducted before calculating
the value of the widow’s one-third share. Id., 592–93. That case, therefore,
sheds no light on the significance of the phrase ‘‘after the payment of all
debts and charges against the estate’’ in the spousal share statute.
12
We observe that the mere fact that § 45a-438 provides that the children
shall receive their shares after the surviving spouse receives his or her share
does not rule out the time of distribution as the time at which a surviving
spouse’s share is set out and valued. Indeed, § 45a-438 (a) specifically pro-
vides that the children shall receive their intestate shares ‘‘[a]fter distribu-
tion has been made of the intestate estate to the surviving spouse . . . .’’
(Emphasis added.)
13
For a description of the manner in which the right of dower in Connecti-
cut originates in and differs from the right of dower pursuant to English
common law, see Brown’s Appeal, 72 Conn. 148, 44 A. 22 (1899).
14
General Statutes (1887 Rev.) § 623 provides in relevant part: ‘‘On the
death of a husband or wife married on or after the twentieth of April,
eighteen hundred and seventy-seven, the survivor, except in cases mentioned
in the proviso to this section, shall be entitled to the use, for life, of one-
third in value of all the property, real and personal, legally or equitably
owned by the other at the time of his or her death, after the payment of all
debts and charges against the estate; such third to be set out by distributors
appointed by the Court of Probate, in any property, real or personal or both,
according to the judgment of such distributors. The right to such third shall
not be defeated by any disposition of the property, by will, to other parties;
but where there is no will, the survivor shall take such third absolutely, and
if there are no children of the decedent or representatives of children,
the survivor shall take one-half absolutely instead of one-third. Where the
husband has, by will, devised or bequeathed a portion of his property to
his surviving wife, or where the wife, by will, has devised or bequeathed a
portion of her property to her surviving husband, such provision shall be
taken to be in lieu of the share herein provided for, unless the contrary
shall be expressly stated in the will, or shall clearly appear therein; but in
any such case the party shall have his or her election whether to accept
the provision of such will or take such statutory share. The wife shall, also,
when, in the opinion of the Court of Probate, it is necessary, be allowed a
reasonable sum from the estate of the husband, for her support and for the
support of her family during the settlement of his estate; but in that case
she shall not take her statutory share till after the expiration of the time
for which such allowance is made; provided always, that the provisions of
this section with regard to the statutory share of the surviving husband or
wife in the property of the other shall not apply to any case where, by
written contract made before or after marriage, either party has received
from the other what was intended as a provision in lieu of such statutory
share. Nor shall either party be entitled to such statutory share who, without
sufficient cause, had abandoned the other, and had continued such abandon-
ment to the time of the other’s death.’’ (Emphasis in original.)
15
General Statutes § 45a-320 provides: ‘‘(a) The Court of Probate may
allow out of any real or personal estate of a deceased person in settlement
before such court, including a small estate being settled under the provisions
of section 45a-273, such amount as it may judge necessary for the support
of the surviving spouse or family of the deceased during the settlement of
the estate.
‘‘(b) In making such allowance the court may in its discretion include in
its decree ordering such allowance any one or more of the following provi-
sions, to the extent they are not mutually inconsistent: (1) A provision that
such allowance shall run (A) for the entire period the estate is in settlement,
or (B) for a fixed period of time not to exceed the period of settlement, in
which case such allowance shall be subject to renewal by the court in its
discretion; (2) a provision that such allowance is to be paid in a lump sum;
(3) a provision that such an allowance made for a surviving spouse shall
vest in such spouse retroactively as of the moment of death of his spouse
so that it will be a fixed sum certain as of said date of death and shall not
terminate with the subsequent death or remarriage of the surviving spouse,
such allowance to be the absolute property of the surviving spouse, or, if
deceased, of the estate of such surviving spouse, without restriction as to
use, encumbrance or disposition and for the purpose of this section, the
right to seek such a vested allowance shall be a vested right as of the date
of death of the deceased spouse, and (4) a provision that such allowance
shall be charged ultimately in whole or in part against any right the surviving
spouse or other family member for whom an allowance is ordered may have
to the income of the estate earned during the period of settlement.
‘‘(c) The court may also allow for the use during the settlement of the
estate by such surviving spouse or family of any motor vehicle maintained
by the decedent during his lifetime as a family car.’’
16
We observe the irony of this particular argument advanced by the plain-
tiff, in light of the findings of both the Probate Court and the trial court
that the plaintiff took ‘‘ ‘actions deliberately designed to undermine the
economic viability of the estate.’ ’’