(concurring in part and dissenting in part, with whom Spina, J., joins). I agree with the court’s conclusion that the plaintiff cannot recover in this case on the theories argued. I favor adopting, however, the principles expressed in § 9.1(c) of the Restatement (Third) of Property: Wills and Other Donative Transfers (2003), to govern assets held by a decedent in a trust with terms like this trust, which permit the decedent to control the trust assets entirely for his or her sole benefit, whether those assets were placed in the trust by the deceased spouse or by a third person.1 I would do so because this court’s decision in Sullivan v. Burkin, 390 Mass. 864, 867 (1984), contemplates an extension of this sort as long as Restatement text approves it (which the text now does) and because the approach taken by the American Law Institute (ALI) treats functional equivalents of ownership similarly and does not allow choice of form to deny a surviving spouse a share of property in which he or she would have a substantivé' right had the marriage ended in divorce rather than death. If the protection contemplated by the statutory elective share is to have any practical significance in an age where conventional estate planning offers scores of will substitutes, a deceased’s “estate” cannot be limited solely to the *40probate estate.2 The possible disruption of one’s estate plan does not diminish the importance of a statutory approach that provides a minimum measure of economic security to surviving spouses, usually women, who would otherwise be disinherited. Indeed, at its most elemental level, the elective share was designed to frustrate the intent of a settlor or testator whose estate plan otherwise would operate totally (or substantially) to disinherit his or her spouse.
It is not quite right to say, as the court does, that this issue has not been briefed. Although the plaintiff has not specifically cited the Restatement, his arguments are entirely congruent with that authority. More directly, the plaintiff relies (as does the amicus, the Women’s Bar Association of Massachusetts), as might be expected, on the decision of Sullivan v. Burkin, supra, which has Restatement (Second) principles and thinking at its core. The Restatement (Second) is also referenced specifically in the decision of the Appeals Court. See Bongaards v. Millen, 55 Mass. App. Ct. 51, 58 & n.16 (2002).3
As noted by the court, the Restatement (Third) now expressly includes, as part of the deceased spouse’s estate for purposes of *41a surviving spouse’s elective share, “the value of property owned or owned in substance by the decedent immediately before death that passed outside of probate at the decedent’s death to donees other than the surviving spouse.” Restatement (Third) of Property: Wills and Other Donative Transfers § 9.1(c) (2003). The court’s criticism of the ALI and its Restatement (Third) of Property: Wills and Other Donative Transfers is quite remarkable. The court suggests in various ways that the approach adopted by the ALI is vague, unsupported, contradictory, and poorly reasoned. I disagree.
The text of the Restatement makes reasonably plain that the ALI is adopting, and building on, the acknowledged and well-reasoned change made by this court in Sullivan v. Burkin, supra, to extend spousal elective share rights to property owned outright or virtually outright by the deceased spouse. The definition of “owned in substance” in the Restatement is not, as characterized by the court, “murky.” Ante at 30. Comment j to § 9.1(c) explains that property may be “owned in substance by the decedent through various powers or rights, such as the power to revoke, withdraw, invade, or sever, or to appoint the decedent or the decedent’s estate as beneficiary. ... It is irrelevant whether the decedent acquired substantive ownership of the property before or after the marriage by gift or otherwise from someone else. The objective is to equate property owned in substance with probate property, which includes property that the decedent acquired before or after the marriage by gift or otherwise from someone else.” The term is further illustrated in a definitional section of Restatement text as “property that the decedent did not own but over which the decedent had sufficient control, such as through a power to become the owner, to be treated as the owner for some purposes, such as the federal estate tax or the spouse’s elective share. Thus, property subject to a revocable trust is part of the decedent’s gross estate for purposes of the federal estate tax and is subject to the spouse’s elective share, but is not part of the decedent’s probate estate. The same applies to property in a trust over which the decedent had a general power of appointment. . . .” Restatement (Third) of Property: Wills and Other Donative Transfers § 1.1 comment b (1999). This definition clearly identifies that it pertains to *42transfers made (as here) by a third party; that it “refers to property . . . over which the decedent had sufficient control, such as through a power to become the owner” (which is the case here); and that it includes property held by the decedent which is subject to the “federal estate tax” (which is also the case here).4 Id. In other words, the Restatement (Third) makes clear what common sense suggests: if the deceased spouse has complete control over assets in a trust, the deceased spouse should be treated as the trust’s owner for purposes of the surviving spouse’s elective share rights.5
The statements made by the member referred to in the court’s opinion, ante at 33 n.20, at the meeting at which the Restatement’s principles were adopted, are entirely consistent with what has been said above. The fact of the matter, however, is that the final product bears the approval of the entire membership of the ALI reached only after long deliberative processes and with involvement and commentary by judges, lawyers, academics, and experts in the area of property rights, wills, and other instruments that affect donative transfers and spousal elective share rights.6
The court suggests that my dissent rests on principles of equitable property division under G. L. c. 208, § 34. This is not so.7 I simply recognize, as the Sullivan court did, that the area of marital property division bears some intrinsic relevance to *43the operation of G. L. c. 191, § 15. See Sullivan v. Burkin, supra at 871-872. The Appeals Court made a similar analogy in this case when it said: “There is considerable force to the view that a person who remains married until the death of his or her spouse should have similar access to the assets of a trust controlled by that spouse as would be extended to that person had he or she become divorced from that spouse.” Bongaards v. Millen, supra at 58-59. Doubtless there may be instances in which the statute’s mechanical formula for determining the elective share amount, regardless of what property is included in the “estate of the deceased,” might overcompensate a surviving spouse of independent means or one who has been otherwise provided for by life insurance, pension death benefits, or other will substitutes. It could also provide a windfall to one who, due to the short duration of the marriage, should not be entitled to a full statutory share of the deceased spouse’s estate. Such occurrences, undoubtedly infrequent, are part and parcel of any elective share statute. In the vast majority of cases, however, the statute, interpreted to include assets in trusts with terms such as the trust before us, would not operate to create unjust results but rather would provide a measure of equity and justice to an effectively disinherited spouse, typically a wife. There thus is imbedded in the entire scheme a gender issue of societal importance that can be appropriately addressed and solved straightforwardly by a common-law court, without hand-wringing over statutory construction.8
My position is supported by the observations that (1) in *44almost every situation, the elective share does not come into play because the deceased spouse did not directly or indirectly seek to disinherit the surviving spouse; and (2) settlors such as D’Amore could, by appropriate wording, achieve the ends apparently sought here by not giving the sole trustee and primary beneficiary a power akin to a general power.
I recognize that a sweeping judicial change in this area could have unintended far reaching consequences and adhere to the view expressed by the Sullivan court, that “[t]he 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 v. Burkin, supra at 873. As noted by the court, the Legislature “has recently considered numerous proposals” and at least five bills currently are pending before the Legislature to “modernize” the current elective share statute, acknowledged by the court to be “woefully inadequate.” Ante at 21. Based on the lack of legislative action to date, it cannot be expected that the Legislature will promptly act in the wake of the court’s decision today. Moreover, because the court leaves little margin for hope that any judicial relief in the area of spousal elective share rights will be forthcoming (and because any ruling on the subject would be prospective only), there will not likely be another case to achieve an equitable result based on the reasoning of Sullivan v. Burkin, supra.
I am mindful that “[i]n the area of property law, the retroactive invalidation of an established principle is to be undertaken with great caution.” Sullivan v. Burkin, 390 Mass. 864, 871 (1984). Consequently, I would apply such a rule on a prospective basis only, to any trust created or amended after the date of this opinion.
The purpose of G. L. c. 191, § 15, is twofold. The obvious purpose is to provide support to the surviving spouse, thus underscoring the proposition that the obligation to support one’s spouse continues after death. In addition, the statute attempts to return to the surviving spouse his or her economic contribution to the marriage, thus recognizing the contemporary philosophy that marriage is an economic partnership. Neither purpose is served when a spouse has the practical advantage of entire ownership in trust property as long as he or she lives, yet is permitted to deprive his or her spouse of an elective share in the property on death.
This court consistently has looked to the views expressed by the American Law Institute for guidance in the context of property law (a point exemplified by the Sullivan decision) and, more recently, has relied on the Restatement’s principles contained in Restatement (Third) of Property (Donative Transfers) (Tent. Draft No. 1, 1995), with respect to the reformation of wills and trust instruments. See, e.g., Flannery v. McNamara, 432 Mass. 665, 671-672, 674 (2000) (citing with approval § 11.2[b][3] on admissibility of extrinsic evidence to prove ambiguity in will, declining to follow § 12.1 allowing reformation of unambiguous will); BankBoston v. Marlow, 428 Mass. 283, 285-286 (1998) (citing with approval § 12.2 allowing reformation of trust instrument that produced tax results inconsistent with settlor’s intent); Putnam v. Putnam, 425 Mass. 770, 772 & n.3 (1997) (relying on § 12.1 to establish standard for existence of mistake in drafting trust instrument, noting reluctance of court to recognize mistake in unambiguous will document).
The record indicates that the value of the trust assets was included in Jean’s Federal estate tax returns.
The court bolsters its conclusion today with the observation that a person who could have, but did not, exercise powers over trust property during his or her lifetime should not fairly be treated as the property’s owner. Ante at 26. This somewhat myopic view of ownership was implicitly rejected by the Sullivan court when it concluded that it is the extent of control over the disposition of trust assets (rather than the actual disposition of those assets), that is determinative of the trust property’s inclusion in a surviving spouse’s elective share. See Sullivan v. Burkin, supra at 872-873.
That the Restatement (Third) of Property: Wills and Other Donative Transfers primarily refers to decisions that involved trusts and instruments crafted by the decedent is not significant. The Sullivan court moved away from traditional hidebound notions of ownership, and existing precedent has not yet (at least on the subject we consider today) had the opportunity to take the next logical step.
Indeed, the court’s opinion appears to respond primarily to the expansive position on this issue advanced in the amicus brief, rather than the more *43limited view set forth in my dissent. It should be obvious that I favor prospective expansion of the “estate of the deceased” no further than to include assets held in an inter vivas trust when the terms of the trust (as they did here) permit the decedent alone to alter, amend, or revoke the trust to devote the assets entirely to his or her sole benefit, regardless whether those assets were placed in the trust by the deceased spouse or by a third person.
I specifically disagree with the court’s notion that I am ignoring basic principles of statutory construction because we are construing a legislative term, namely, the “estate of the deceased,” that, in the court’s view, is unambiguously confined to the deceased’s probate estate. The entire elective share statute is underpinned with common-law concepts drawn from trust law and from the law of donative transfers, and its terms, thus, must be construed in light of common-law notions of probate and nonprobate assets and concepts of equity. The Sullivan court had no hesitation in taking a trust that was non-testamentary in nature and making it a part of the “estate of the deceased” for *44purposes of the elective share statute. To distinguish the Sullivan decision by pointing out that it dealt with a trust created by the decedent and not by a third party is to beg the precise question we have undertaken to address — whether the “estate of the deceased" should include trust property over which the decedent (like Ernest G. Sullivan or Jean A. Bongaards) enjoyed absolute control and use so as to be treated, for all practical purposes, as the property’s owner during his or her lifetime, regardless of the property’s original ownership?