(concurring in part and dissenting in part). In Sullivan v. Burkin, 390 Mass. 864 (1984) (Sullivan), this court, after considering, among several authorities, a then draft provision of the Restatement (Second) of Property: Donative Transfers (1984) (Restatement [Second]) of the American Law Institute (ALI), concluded that “the estate of a decedent, for the purposes of G. L. c. 191, § 15, shall include the value of assets held in an inter vivas trust created by the deceased spouse as to which the deceased spouse alone retained the power during his or her life to direct the disposition of those trust assets for his or her benefit, as, for example, by the exercise of a power of appointment or by revocation of the trust.” Sullivan, supra at 867. Id. at 869-870 & n.4, 873. The court reached this conclusion after the Appeals Court had reported the precise question to this court in light of the “recent discussions within the American Law Institute.”1 Id. at 865 n.2. In response to the Appeals Court report, the parties filed comprehensive briefs with *36this court concerning the discussions within the proposed draft (later adopted) of § 13.7 of the Restatement (Second) of Property: Donative Transfers (Tent. Draft No. 5 Supp. 1982) on the subject, and the ramifications of overturning judicial precedent and announcing a new property rule. See Sullivan, supra at 871 (“In the area of property law, the retroactive invalidation of an established principle is to be undertaken with great caution”).
Today, the court undertakes a sweeping criticism of § 9.1(c) of the Restatement (Third) of Property: Wills and Other Donative Transfers (2003) (Restatement [Third]), the successor to § 13.7 of the Restatement (Second), the section concerning inter vivas trusts at issue in Sullivan. The court does so even as it recognizes that the issue was not raised in the trial court, in the Appeals Court, or in this court, was not briefed by any of the parties, ante at 28-29, and neither the parties nor the sole amicus2 makes so much as a passing reference to § 9.1(c), to any other provision of the Restatement (Third), or to any other statement of the ALI, for that matter.
The court’s inexplicable reaching out to criticize, entirely in dicta, the ATI’s most recent formulation concerning the interplay between inter vivas trusts and the statutory elective share, G. T. c. 191, § 15, is particularly unwarranted because the plaintiff himself has not so much as suggested any expansion of the Sullivan rule, but argued only that the peculiar facts surrounding the creation, and the terms of, the trust at issue in this case brought the trust within Sullivan’s controlling precedent.3, 4 The court correctly concludes they do not.
This is a simple case, controlled by Sullivan. As the court *37correctly notes, Sullivan applies only to inter vivas trusts created by a deceased spouse. Ante at 17-18. The trust at issue here was not created by the deceased spouse, and under Sullivan, is not part of the decedent’s estate for purposes of G. L. c. 191, § 15. See Sullivan, supra at 872. As the plaintiff makes no other claim, that should end the court’s inquiry. The only argument for a “more expansive rationale,” ante at 19, for reaching the result urged by the plaintiff has been advanced by an amicus. And that amicus makes no reference whatsoever to § 9.1(c) of the Restatement (Third), or to any other treatise of the ALI.5
I concur with the conclusion of the court that the arguments actually advanced by the plaintiff have no merit, and for that reason the real estate at issue should not be considered part of the estate of the deceased spouse for purposes of calculating the plaintiffs statutory elective share, G. L. c. 191, § 15. I dissent from so much of the court’s opinion as indulges in the criticism of, or forecloses in any respect our subsequent consideration of, the recently approved § 9.1(c) of the Restatement (Third). Ante at 28-34. In my view this court could and should review in an appropriate case, if properly raised, whether interpretation of our elective share statute G. L. c. 191, § 15, should be *38infonned by (not dictated by) the ALI’s view, as this court did in Sullivan.
Indeed, adherence to the statutory construction now urged by the court would have foreclosed our ruling in Sullivan. It is neither accurate nor sufficient to say that Sullivan closed a statutory “loophole,” ante at 22, or that the property at issue in that case is subject to the spousal elective share because it “would ordinarily have been” part of the probate “estate.” Id. The probate estate is, of course, not determinable until the person dies. And Sullivan was explicit that it relied for its ruling, not on any proposed new Restatement of the ALI, but on the observation that “significant changes since 1945 in public policy considerations bearing on the right of one spouse to treat his or her property as he or she wishes during marriage” warranted overruling Kerwin v. Donaghy, 317 Mass. 559 (1945). Sullivan, supra at 871-872. Indeed, in Sullivan, the court did not adopt the ALI’s position as such, and notes that, even within the ALI, the issue was contentious. Id. at 869.
Contrary to the court’s intimation, consideration in an appropriate case whether § 9.1(c) of the Restatement (Third) should provide guidance to this court’s review of a G. L. c. 191, § 15, claim concerning an inter vivas trust created by a third party would not necessarily “contravene” every settlor’s plans. Ante at 22-23. It is one thing for a settlor to provide that independent trustees are to direct the disposition of some trust assets to a spouse beneficiary during her lifetime, with all unexpended trust assets passing to residual beneficiaries. It is quite another for a settlor to relinquish all control of the trust to a sole trustee (a spouse) who alone has the power to direct the disposition of all trust assets to herself as beneficiary on the settlor’s death, as the settlor did in this case. If Sullivan closed a “loophole,” in G. L. c. 191, § 15, concerning what “property” of the deceased spouse is to be considered for purposes of the deceased spouse’s “estate,” Sullivan, supra at 871, so too might other “loopholes” be closed by this court. The principles articulated by § 9.1(c) of the Restatement (Third) can reasonably be seen as an attempt to foreclose another “loophole,” rather than any attempt to “satisfy modem notions of a decedent spouse’s obligation to support the surviving spouse or modem notions of marital property.” Ante at 21.
*39The purpose of the elective share, G. L. c. 191, § 15, is, as noted by Justice Greaney, to “provide a minimum measure of economic security to surviving spouses, usually women, who would otherwise be disinherited.” Post at 40 (Greaney, J., concurring in part and dissenting in part). I reject any suggestion that this court cannot interpret the statute to effectuate this purpose. Surely the “question of the rights of a surviving spouse in the estate of a deceased spouse, using the word ‘estate’ in its broad sense, is one that can best be handled by legislation.” Sullivan, supra at 873. But until the Legislature acts, “the answers to these problems will ‘be determined in the usual way through the decisional process.’ ” Id. at 874, quoting Tucker v. Badoian, 376 Mass. 907, 918-919 (1978) (Kaplan, J., concurring).
The Appeals Court’s report to this court states in its entirety: “It appearing to the undersigned justices of this court before whom this case was argued that the case presents a question of unusual public and legal significance (G. L. c. 211 A, § 10[B]) and may, in light of the recent discussions within the American Law Institute (see Restatement [Second] of Property: Donative Transfers, § 13.7 [Supp. to Tent. Draft No. 5, August 25, 1982]), raise some question as to the present vitality of such cases as Kerwin v. Donaghy, 317 *36Mass. 559, 572 (1945), the said justices hereby report this case for consideration and determination of the Supreme Judicial Court.”
Women’s Bar Association of Massachusetts.
The court summarizes the plaintiff’s three arguments with respect to inclusion of the trust property in the plaintiff’s statutory elective share calculation. Ante at 14. None sought to expand the holding of Sullivan v. Burkin, 390 Mass. 864 (1984) (Sullivan). The plaintiff argued only that Sullivan was “sufficiently elastic” to govern his case, and that the trust empowered his deceased spouse “to terminate the trust and distribute the corpus to herself at will” and for this reason was governed by the “doctrine” of Sullivan.
The judge in the Probate Court concluded that the deceased spouse lacked *37powers of appointment sufficient to satisfy one of the requirements of Sullivan, supra at 867: that “the deceased spouse alone retained the power during his or her life to direct the disposition of those trust assets for his or her benefit, as, for example, by the exercise of a power of appointment or by revocation of the trust.” Not surprisingly, the plaintiff devotes much of his brief to argue that the powers under the trust of his deceased wife were similar to the powers of the trustee in Sullivan. I agree with the court that the plaintiff “mischaracterizes” the nature of the powers of the deceased spouse. Ante at 3 n.5.
While it is unnecessary to address at length the separate argument of the amicus, as the court does, ante at 19-27, see Pineo v. Executive Council, 412 Mass. 31, 35 n.6 (1992) (“Since the issue is not raised in the plaintiffs’ brief, we decline to address the argument in the brief of one of the amici curiae . . .”), I agree that the statutory property rights that accrue on divorce and the statutory property rights that accrue on a spouse’s death cannot be treated “equally.” Ante at 23.1 adhere to this court’s observation in Sullivan that “[it] is neither equitable nor logical to extend to a divorced spouse greater rights in the assets of an inter vivas trust created and controlled by the other spouse than are extended to a spouse who remains married until the death of his or her spouse.” Sullivan, supra at 872.