The principal issue in this appeal is whether valid trust savings accounts, established by a decedent pursuant to General Statutes § 36-110 (a),1
The plaintiff, acting both individually and as the administratrix of the decedent’s estate, brought this action against the defendants, claiming that: (1) as the administratrix of the decedent’s estate, she was entitled to immediate possession of certain bank accounts and real property in the defendants’ possession; and (2) as the widow of the decedent, she was entitled to her intestate share of those accounts and real property. The trial court rendered judgment for the defendants. This appeal followed.
The trial court found the following facts: The plaintiff and the decedent married on September 1, 1967. After their wedding, the plaintiff and the decedent resided in a two-family house owned by the decedent in New Haven. On May 3,1968, the decedent executed a quitclaim deed of the house to the three defendants.
The trial court further found that, after the defendants had become the owners of the house by virtue of the deed, they gave the decedent permission to continue to use and occupy the premises for the duration of his life, as if he were still the fee owner. Although from May 3,1968, through November 21,1989, when the decedent died, the insurance policy covering the house named the defendants as the owners of the premises, the decedent continued to bear all the expenses of the house, including taxes, insurance, sewer charges, repairs and mortgage payments. The decedent also continued to collect all the rental income generated by the property, entered into leases with tenants, and responded to the tenants’ complaints and needs. The decedent reported all the income on his and the plaintiff’s joint income tax returns, and took the available depreciation and expense deductions. On various occasions, the decedent stated to his accountant, his neighbors and the municipal authorities that he was the owner of the property. The decedent told his children that it was his intention that they have the property, in accordance with his promise to their mother.
The trial court specifically found that the defendants had proven, by clear and convincing evidence, that the decedent had intended to pass title immediately and irrevocably to the defendants, and that the recording of the deed, coupled with that intent, constituted an immediate legal delivery to the defendants. The court also specifically stated that this finding was not contravened by the fact that the decedent had continued to control the property, with the defendants’ consent, during his lifetime.
The decedent also opened a joint survivorship savings account with the Bank of Boston, in his name and that of Paul Dalia. This account was listed under the decedent’s social security number, and until November 13, 1989, he exercised complete control over the account and the funds in it. Under the rules of the bank, both the decedent and Paul Dalia had access to this account while both were alive. The passbook was kept either in the decedent’s house or in the safety deposit box mentioned above.
The trial court also found that on November 13,1989, as the decedent was dying, he gave Paul Dalia the keys to the safety deposit box and told him: (1) to close out the joint survivorship account and use the funds,
With respect to all the bank accounts, the trial court also found that the decedent had told the defendants that it was his intention that they have the money in the accounts, in accordance with his promise to the defendants’ mother. With respect to the joint account, the court found that the plaintiff had failed to rebut the statutory presumption created by General Statutes § 36-3 that the decedent had intended to pass to Paul Dalia a present beneficial ownership interest in the account when the decedent opened the account.
On November 21,1989, the decedent died intestate. On November 28,1989, the bank paid Julia Lawrence the funds in the trust account for her, in the amount of approximately $14,000, and on November 29,1989, the bank paid Carmen Dalia the funds in the trust account for her, in the amount of approximately $17,000. The defendants filed a state succession tax return conceding their tax liability for the full value of the real property and of the funds in the bank accounts. The department of revenue services assessed the defendants accordingly.
I
The plaintiff first claims that the trial court improperly concluded that the trust savings accounts were not part of the decedent’s intestate estate for purposes of determining the plaintiff’s intestate share. We disagree.
In Manulik v. Devitt, supra, we concluded that a trust savings account that had been established by a mother as trustee for her daughter, the defendant in the case, was valid. After the mother’s death, the plaintiffs, who were the defendant’s brothers, contended that their mother had intended that the money in the account be divided equally among her children upon her death. Id., 665. We held, however, that § 36-110 (a) established “a conclusive presumption” that the depositor had intended to create a trust upon the terms stated in the statute; see footnote 1; and specifically that “the effect of the foregoing [presumption] 'shall not be denied, abridged or in any way affected because such signed statement . . . fails to comply with . . . the laws of this state prescribing the requirements to effect a valid testamentary disposition of property or because of any absence of delivery or compliance with other requirements to effect a valid gift or transfer in trust.’ [General Statutes § 36-110 (a) (2).]” Id., 667.
In Manulik, moreover, we rejected the plaintiffs’ argument that § 36-110 had been enacted solely for the protection of banks and that, therefore, the ownership of the trust account should be determined in accordance with the settlor’s intent and “common-law prereq
In Salvio v. Salvio, 186 Conn. 311, 441 A.2d 190 (1982), we considered the effect of § 36-110 (a) in the context of a marital dissolution action. At issue in that case was “whether savings accounts held by one or both parties in trust for their children may be included by the trial court in its division of marital property accompanying the parents’ [marital dissolution].” Id., 312. We held that the accounts could be included by the trial court in its division of marital property because § 36-110 (a) provides that the beneficiary of a savings account trust acquires no legal interest in the funds on deposit until the trustee’s death. Id., 322-24.
In Salvio, we adverted to the fact that “[although there is no ... consensus on the right of a spouse to reach funds deposited in savings account trusts when computing an elective share of the depositor’s estate, the prevailing view is that, since the decedent spouse exercised such complete power over the funds during his lifetime, the surviving spouse should be permitted to include them.” Id., 321. Noting, however, that New York had by statute included trust savings accounts in the decedent spouse’s estate, we also stated: “The issue has not yet been squarely addressed in Connecticut, although it is clear that ‘neither husband nor wife acquires, by virtue of the marriage, any interest in the real or personal property of the other during that other’s lifetime,’ and ‘either spouse may, in his lifetime, without the consent or knowledge of the other, make a valid gift or otherwise dispose of his property, to a third party.’ Cherniack v. Home National Bank & Trust Co., 151 Conn. 367, 370, 198 A.2d 58 (1964); see Hodge v. Hodge, 178 Conn. 308, 314, 422 A.2d 280 (1979); Clark, ‘The Recapture of Testamentary Substitutes to Preserve the Spouse’s Elective Share: An Appraisal of Recent Statutory Reforms,’ 2 Conn. L. Rev. 513, 522 (1970).” Salvio v. Salvio, supra, 321 n.8.
This case, therefore, squarely presents the issue to which the court in Salvio referred but that it did not decide. The plaintiff argues that Connecticut has a strong public policy, reflected in General Statutes (Rev.
We do not believe that they are. Reading § 36-110 (a) and § 45-273a (b) together, as we must, we conclude that the legislature did not intend that valid trust savings accounts, established pursuant to § 36-110 (a), be considered part of a decedent’s intestate estate for purposes of determining the surviving spouse’s share of that estate under § 45-273a (b).
First, both the language of § 36-110 (a) and our interpretation of it in Manulik v. Devilt, supra, strongly suggest that such accounts pass according to their terms and according to the terms of § 36-110 (a), and that no exception was intended by the legislature for surviving spouses. The language of § 36-110 (a) is particularly definite. Unless the depositor has stated to the con
This conclusion is consistent with our construction of § 36-110 (a) in Manulik v. Devitt, supra. Although concededly we were not faced with a challenge mounted by a surviving spouse, in that case we read § 36-110 (a) as intended “to give full effect to a savings account trust deposit despite the requirements of the Statute of Wills.” (Emphasis added.) Id., 667. We also stated that the statute was intended to attach “specific consequences” to the creation of such a trust, and that such creation manifested the “conclusively presumed intent” of the settlor,, which should “be accorded full effect through the instrumentality of a ‘statutory trust’ . . . .’’Id., 668. By transporting the proceeds of the trusts in this case into the decedent’s intestate estate
Furthermore, if a decedent were to die intestate but were not survived by a spouse, the fiduciary of the intestate estate could not successfully require the named beneficiary of a § 36-110 (a) trust to disgorge its proceeds on the ground that they were properly part of the decedent’s “intestate estate” under § 45-273a. The plaintiff, however, would in effect have us interpret the phrase “intestate estate” in § 45-273a to include the proceeds of such a trust depending on the identity of the claimant thereto: if the claimant is the surviving spouse, the phrase includes such a trust; if the claimant is anyone other than the surviving spouse, the phrase does not include such a trust. In the absence of clear legislative direction to do so, we decline to give different meanings to the same phrase in the same statute depending on the identity of the party claiming entitlement to the property described by such phrase. See Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 571, 620 A.2d 118 (1993); In re Valerie D., 223 Conn. 492, 517, 613 A.2d 748 (1992).
Moreover, in Cherniack v. Home National Bank & Trust Co., 151 Conn. 367, 368, 198 A.2d 58 (1964), the testator, without his wife’s knowledge, had transferred the bulk of his estate to an inter vivos trust, reserving to himself the net income for his life and the powers of revocation and amendment, and providing for the trust assets to pass to his brothers upon his death. This court held that: (1) the trust was not invalid as an attempted testamentary disposition; id., 370; and (2) the transfer could not be set aside as fraudulent as to his widow because she “had no right or interest in the property of the decedent during his lifetime.” Id.,
The ready availability of these alternative arrangements further supports our conclusion that § 45-273a does not include a § 36-110 (a) savings account. Because a financially sophisticated decedent would have been able to take advantage of these arrangements with a minimum of loss of control and inconvenience, there is little reason to believe that the legislature intended § 45-273a to prevent the same ends from being accomplished by the less sophisticated means of such a trust account. Indeed, although in Manulik v. Devitt, supra, 668, we stated that “§ 36-110 gives effect to the intention of the depositor to make a ‘poor man’s will,’ ” it is probably more accurate to describe such an account as an “unsophisticated person’s revocable trust.” See Cherniack v. Home National Bank & Trust Co., supra.
Finally, our conclusion is buttressed by reference to §§ 45a-436 and 45a-437. See footnote 5. Whereas § 45-273a covered a surviving spouse’s elective share in lieu of that given by a will under subsection (a) and
Of particular significance is § 45a-436 (a), which provides in pertinent part that the “surviving spouse may elect ... 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 . . . .” (Emphasis added.) The emphasized language, which was not present in § 45-273a, was added by the 1990 recodification.
The legislative history, however, makes unmistakably clear that this recodification was nonsubstantive in nature, and that any changes in language were intended solely for the purposes of clarifying the preexisting meaning. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1990 Sess., pp. 417, 501, 545, 617-18, 681. Thus, we must regard that language as retroactively clarifying the meaning of § 45-273a (a). See Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 393, 618 A.2d 1340 (1993); Weinberg v. ARA Vending Co., 223 Conn. 336, 345-47, 612 A.2d 1203 (1992).
It is evident, therefore, that a surviving spouse’s elective share in lieu of what he or she would take under a will does not include the proceeds of a § 36-110 (a) account, because those proceeds cannot be regarded as “passing under the will” within the meaning of
II
The plaintiff’s second claim challenges the trial court’s findings regarding the transfer of the real property. The plaintiff claims that the transfer was not a valid inter vivos gift to the defendants because: (1) there was no conveyance of a present interest; and (2) the findings were not in accord with the substantial weight of the evidence and ignored the relevant evidence of the decedent’s intent. The plaintiff argues that “[i]t is clear [the decedent’s] intent was neither to part with control of the property nor to pass title immediately and irrevocably to the [defendants]. It is likewise clear that the conveyance was made to become operative and create interests in the [defendants] only upon [the decedent’s] death.” This claim fails.
“When an estate is a party, the burden is on the person claiming the gift to prove the claim by clear and satisfactory proof. Kukanskis v. Jasut, 169 Conn. 29, 32, 362 A.2d 898 (1975). The question of whether a gift inter vivos or causa mortis has been made is within the exclusive province of the court. Id., 32-33; Bell v. Bloom, 146 Conn. 307, 311, 150 A.2d 300 (1959);
“A finding of fact is clearly erroneous when there is no evidence in the record to support it; Web Press Services Corporation v. New London Motors, Inc., 205 Conn. 479, 483, 533 A.2d 1211 (1987); 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. Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948). Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990).” (Internal quotation marks omitted.) Inland Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 708, 590 A.2d 968 (1991); State Medical Society v. Commis
The trial court found that the decedent had intended to vest title to the real property in the defendants immediately and irrevocably. This critical finding was supported by the following evidence. At the time of the conveyance, the decedent told the defendants that it was his intention that they have the property then, in accordance with his promise to their mother. After the decedent executed and recorded the deed, it was not mailed back to him but was mailed to the defendant Julia Lawrence. The decedent’s continued control of the property thereafter was with the permission of the defendants. Between 1968 and 1991, Julia Lawrence and her husband made repairs to the house. Indeed, there was evidence that, in 1969, the defendants acted consistently with the decedent’s intent to vest title to the property in them: they exercised ownership of the properly by serving the decedent and the plaintiff with notices to quit the premises, although evidently the defendants never actually filed a summary process action. Finally, the plaintiff had told tenants who complained about the condition of the building that they should contact Julia Lawrence. There is, therefore, ample evidence in the record to support the court’s findings, and we cannot say that we are left with a definite and firm conviction that there has been a mistake.
Ill
The plaintiff’s final claim is that the trial court’s finding regarding the joint survivorship account is clearly erroneous. The plaintiff argues that the court could not find, as it did, that the decedent intended to vest ownership of the account in Paul Dalia because, contrary to the court’s finding that the decedent gave Paul Dalia the keys to his safety deposit box as he lay dying on
The plaintiff does not dispute that the ownership of the survivorship account is governed by General Statutes § 36-3.11 Nor does she dispute that, pursuant to this statute, she had the burden of persuading the trial court, by “clear and convincing evidence,” that the creation of the account by the decedent did not evidence his intention “to vest title to such deposit or account, including all additions and increments thereto, in [the] survivor . . . .” General Statutes § 36-3 (a); see Cooper v. Cavallaro, 2 Conn. App. 622, 626, 481 A.2d
First, as the defendants point out, Paul Dalia did not testify that he took the passbook from the safety deposit box on November 13,1989; he testified that he closed out the survivorship account on that date. Thus, although the trial court’s finding is inaccurate in this regard, the gist of that finding is accurate, namely, that on November 13,1989, the decedent relinquished full control of the passbook to Paul Dalia, and that Paul Dalia thereafter acted consistently with that relinquishment.
Second, the trial court specifically found that the plaintiff had failed to convince it by clear and convincing evidence that the statutory presumption created by § 36-3 was rebutted. There is nothing in this record that would justify our upsetting that factual finding.
The judgment is affirmed.
In this opinion Peters, C. J., Callahan and Norcott, Js., concurred.
1.
General Statutes § 36-110 provides: “deposits in trust, (a) (1) No savings bank, state bank and trust company, savings and loan association or national banking association shall accept any deposit made by one person in trust for another unless the same is accompanied by a statement signed by the depositor giving the name and residence of the beneficiary. Such statement may also specify the terms of the trust thereby created. Unless such statement specifies to the contrary, it shall be conclusively presumed that the depositor intends to create a trust of the moneys at any time standing to the credit of such account upon the following terms: (A) The depositor during his life may withdraw, or authorize charges against, the moneys to the credit of the trust; (B) if the depositor survives the named beneficiary, the named beneficiary’s death shall terminate the trust and title to the moneys to the credit of the trust shall vest in the depositor free and clear of the trust; (C) if the named beneficiary survives the depositor, the depositor’s death shall terminate the trust and the moneys to the credit of the trust shall vest in the named beneficiary free and clear of the trust. (2) Any savings bank, state bank and trust company, savings and loan association or national banking association shall be fully protected in making payment of the moneys to the credit of such account in accordance with the terms of such signed statement or, in the event such statement does not specify to the contrary, in accordance with such of the presumptions contained in this subsection as may be applicable, and the title of any person to the moneys to the credit of such account and the effect of such signed statement with respect thereto or, in the event such statement does not specify to the contrary, the effect of such of the presumptions contained in this subsection shall not be denied, abridged or in any way affected because such signed statement was not executed in accordance with, or otherwise fails to comply with, the laws of this state prescribing the requirements to effect a valid testamentary disposition of property or because of any absence of delivery or compliance with other requirements to effect a valid gift or transfer in trust. (3) The provisions of this subsection shall not apply to the deposits accompanied by a statement of the type described in subsection (b) of this section.
“(b) In the case of a deposit made or maintained in a savings bank, state bank and trust company, savings and loan association or national banking association by a trustee under a will or other 'written instrument, or by
“(c) Subsection (a) shall apply to all deposits governed by its provisions made (1) on or after June 13,1963, and (2) prior to said date if the depositor when making such deposit or at any time thereafter executed or executes a written statement as provided for in subsection (a). Subsection (b) shall apply to all deposits governed by its provisions whether such deposits have been made prior to June 13,1963, or are made thereafter.”
We rely in this opinion on the present language of § 36-110 because the variations in language due to amendments by Public Acts are immaterial for our purposes.
2.
General Statutes (Rev. to 1989) § 45-273a provided in relevant part: “SUCCESSION UPON DEATH OF SPOUSE. ELECTION AGAINST WILL. INTESTATE succession, (a) On the death of a husband or wife, the survivor 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 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 upon application by any interested person, by distributors appointed by the court of probate in any property, real or personal or both, according to the judgment of such fiduciary or distributors. The right to such third shall not be defeated by any disposition of the property by will to other properties. If the husband has by will devised or bequeathed a portion of his property to his surviving wife, or if 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 hereinabove provided for, unless the contrary is expressly stated in the will or clearly appears therein; but, in any such case, the surviving spouse, or the conservator or guardian of the estate of the surviving spouse, with the approval, after public notice and hear
“(b) If there is no will, or if any part of the property, real and personal, legally or equitably owned by the deceased at the time of his or her death, is not effectively disposed of by the will or codicil of the deceased, the portion of the intestate estate of the deceased which the surviving husband or wife of the deceased shall take is: (1) If there is no surviving issue or parent of the deceased, the entire intestate estate absolutely; (2) if there is no surviving issue of the deceased but the deceased is survived by a parent or parents, the first one hundred thousand dollars plus three-quarters of the balance of the intestate estate absolutely; (3) if there are surviving issue of the deceased all of whom are also issue of the surviving spouse, the first one hundred thousand dollars plus one-half of the balance of the intestate estate absolutely; or (4) if there are surviving issue of the deceased one or more of whom are not issue of the surviving spouse, one-half of the intestate estate absolutely.
“(c) The provisions of this section shall apply to estates of all persons dying on or after July 1, 1985.
“(d) For the purposes of this section issue shall include children born out
In 1990, § 45-273a was recodified at General Statutes §§ 45a-436 and 45a-437. See footnote 5.
3.
The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).
4.
The trial court did not find, and the record does not disclose, whether the decedent opened the trust savings accounts or a joint survivorship account before or after his marriage to the plaintiff.
5.
General Statutes § 45a-436 provides: “(Formerly Sec. 45-273a). succession upon DEATH of spouse, statutory share, (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 public notice and hearing, of the court of probate by which such conservator or guardian was appointed, shall, not later than one hundred fifty days from the date of the appointment of the first fiduciary, as defined in section 45a-353, file a notice, in writing, of his or her intention to take the statutory share with the court of probate 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 court of probate 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 court of probate. 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 husband or wife shall not be entitled to a statutory share, as provided in subsection (a) of this section, or an intestate share, as pro
“(h) The provisions of this section shall apply to estates of all persons dying on or after July 1, 1985.”
General Statutes § 45a-437 provides: “intestate succession, distribution to spouse, (a) If there is no will, or if any part of the property, real or personal, legally or equitably owned by the decedent at the time of his or her death, is not effectively disposed of by the will or codicil of the decedent, the portion of the intestate estate of the decedent, determined after payment of any support allowance from principal pursuant to section 45a-320, which the surviving spouse shall take is:
“(1) If there is no surviving issue or parent of the decedent, the entire intestate estate absolutely;
“(2) If there is no surviving issue of the decedent but the decedent is survived by a parent or parents, the first one hundred thousand dollars plus three-quarters of the balance of the intestate estate absolutely;
“(3) If there are surviving issue of the decedent all of whom are also issue of the surviving spouse, the first one hundred thousand dollars plus one-half of the balance of the intestate estate absolutely;
“(4) If there are surviving issue of the decedent one or more of whom are not issue of the surviving spouse, one-half of the intestate estate absolutely.
“(b) For the purposes of this section issue shall include children born out of wedlock and the issue of such children who qualify for inheritance under the provisions of section 45a-438.”
6.
The parties are at odds over whether the plaintiff in this case was in fact left destitute at the decedent’s death. The defendants claim that there is no evidence in the record to support such a determination. The plaintiff responds that there is such evidence. We need not resolve this dispute. First, the trial court made no such finding, and, as far as we can discern, was not asked to do so. More importantly, our interpretation of General Statutes § 36-110 (a) is not predicated on the fact-specific financial circumstances of the individual claimant.
7.
Section 58 of the Restatement (Second) of Torts (1959) provides, with respect to such a trust savings account, that “the intended trust is enforceable by the beneficiary upon the death of the depositor . . . .’’Comment (e), entitled “Restrictions on testamentary disposition,” qualifies this statement as follows: “Although the surviving spouse in claiming his or her statutory distributive share of the estate of the decedent is not entitled to include in the estate property transferred during his lifetime by the decedent in trust for himself for life with remainder to others, even though the dece
8.
Professors Scott and Fratcher argue that, because the depositor reserves complete control over the account during his life, “even though the trust is valid as against the personal representative of the depositor, it should not be valid as against the surviving spouse.” 1A A. Scott & W. Fratcher, Trusts (4th Ed. 1987) § 58.5, p. 232.
9.
The plaintiff relies on: Montgomery v. Michaels, 54 Ill. 2d 532, 301 N.E.2d 465 (1973); Whittington v. Whittington, 205 Md. 1, 106 A.2d 72 (1954); Mushaw v. Mushaw, 183 Md. 511, 39 A.2d 465 (1944); Sturgis v. Citizens National Bank, 152 Md. 654, 137 A. 378 (1927); In re Estate of Jeruzal, 269 Minn. 183, 130 N.W.2d 473 (1964); and Krasney Estate, 7 Fid. Rptr. 403 (Pa. App. 1957).
Our research indicates that, although, numerically, there are more courts that have included such trusts in the surviving spouse’s statutory elective or intestate share than to the contrary, the results are varied enough to preclude characterizing these cases as a “pervasive trend.” See, e.g., Allen v. First Presbyterian Church, 12 Cal. App. 4th 1762, 16 Cal. Rptr. 2d 352 (1993) (deposits in Totten trust not included in surviving spouse’s statutory share); Castellano v. Cosgrove, 280 So. 2d 676 (Fla. 1973) (surviving spouse not entitled to share in Totten trusts absent evidence that such accounts were illusory or an attempt to defraud that spouse); Montgomery v. Michaels, supra (statutory share includes funds in Totten trusts because such trusts, while otherwise valid, are invalid against surviving spouse); Klosiewski v. Slovan Building & Loan Assn., 247 Md. 82, 230 A.2d 285 (1967) (statutory share does not include funds in Totten trust absent evidence that creation of trust was intended to defraud surviving spouse); In re Estate of Jeruzal, supra (affirming trial court’s denial of surviving spouse’s petition to include Totten trust in the statutory share, but expressing intent to apply Restatement rule in the future); Kaminsky v. Smith, 40 App. Div. 2d 522, 334 N.Y.S.2d 544 (1972) (statute specifically included funds in Tot-ten trust as part of statutory share); In re Estate of Iafolla, 380 Pa. 391, 110 A.2d 380 (1955) (construing statute to require inclusion of Totten trust in surviving spouse’s statutory share).
10.
See M. Wenig, “The Marital Property Law of Connecticut: Past, Present and Future,” 1990 Wis. L. Rev. 807, 855 (suggesting such arrangements as an “inter vivos trust with reserved life estate and power of appointment; revocable inter vivos trust; life insurance; refund annuity; revocable or irrevocable joint and survivorship holdings; IRAs and nonqualified retirement plans; pay-on-death U.S. bonds and other P.O.D. contractual benefits; and even a deed deliverable to grantee on death of grantor”); E. Clark, “The Recapture of Testamentary Substitutes to Preserve the Spouse’s Elective Share: An Appraisal of Recent Statutory Reforms,” 2 Conn. L. Rev. 513, 531 (1970) (suggesting insurance, annuities, pensions, United States bonds payable to children on parent’s death, or various trust arrangements).
11.
General Statutes § 36-3 provides: “joint deposits and accounts. (a) When a deposit has been made in this state in any state bank and trust company, national banking association or savings bank or an account has been issued in this state by any savings and loan association or federal savings and loan association or credit union, in the names of two or more persons and in form to be paid to any one or the survivor, or survivors, of them, such deposit or account and any additions thereto made by any of such persons after the making or issuance thereof, together with all dividends or interest or increases credited thereon, shall be held for the exclusive use of such persons and may be paid to any of them during the lifetime of all of them or to the survivor or survivors after the death of one or more of them, and such payment and the receipt or acquittance of the person or persons to whom such payment is made shall be a valid and sufficient release and discharge for all payments so made. The making of a deposit or issuance of an account in such form shall, in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, be prima facie evidence, in any action or proceeding respecting the ownership of, or the enforcement of the obligation created or represented by, such deposit or account, of the intention of all of the named owners thereof to vest title to such deposit or account, including all additions and increments thereto, in such survivor or survivors.
“(b) This section shall not apply to any deposit or account where any owner died before October 1, 1971, nor shall it apply to any action pending on said date.”