In Re the Marriage of Beadle

JUSTICE TRIEWEILER

specially concurring.

¶45 I concur with the result of the majority opinion. I do not agree with all that is said therein.

¶46 Although I understand that the majority’s purpose during its discussion of Issue 3 is to simply distinguish between vested remainders and contingent remainders for the purpose of evaluating the certainty with which a future interest will be realized, I am concerned that language in the majority opinion infers that gifted or devised property which is vested is automatically included in the marital estate. Whether or not gifted, devised, or preacquired property is included in a marital estate for purposes of distribution and, if so, the extent to which such property is included, depends on factors other than whether or not the recipient’s interest is vested. For example, we have previously held that pursuant to § 40-4-202, MCA, preacquired, gifted, or devised property need not be included in the marital estate unless the nonacquiring spouse contributed to its preservation or appreciation. We have further held that only in the event the nonacquiring spouse did contribute, is the nonacquiring spouse entitled to an equitable share of the appreciated or preserved value which is attributable to his or her efforts. See Smith v. Smith, (1995) 270 Mont. 263, 891 P.2d 522; In re Marriage of Bradshaw (1995), 270 Mont. 222, 891 P.2d 506; In re Marriage of Smith (1994), 264 Mont. 306, 871 P.2d 884; In re Marriage of Rock (1993), 257 Mont. 476, 850 P.2d 296; In re Marriage of Keedy (1991), 249 Mont. 47, 813 P.2d 442; In re Marriage of Gallagher (1991), 248 Mont. 100, 809 P.2d 579; In re Marriage of Luisi (1988), 232 Mont. 243, 756 P.2d 456; In re Marriage *14of Fitzmorris (1987), 229 Mont. 96, 745 P.2d 353; In re Marriage of Herron (1980), 186 Mont. 396, 608 P.2d 97.

¶47 For these reasons, although I concur with the majority’s conclusion affirming the District Court’s exclusion of Andy’s interest in his father’s testamentary trust from the marital estate, I do not agree. with all of the language in the majority opinion.