concurring specially.
I agree with the decision in this case as reflected in the majority opinion. I am concerned, however, in reaching that determination the court may have, by implication, indicated the statutory right of election afforded to a surviving spouse in a probate proceeding is available with respect to an inter vivos trust. In my judgment, that right clearly is not available to a trust beneficiary, and I would so hold.
My concern emanates from that portion of the opinion of the court refuting William R. Briggs’ argument that the provisions of the trust agreement are violative of Wyoming’s elective share statute. Wyo.Stat. § 2-5-101 (1980). Perhaps the court lends too much credence to that argument, which *267does amount to a mixing of apples and oranges. The argument is a non sequitur in light of the facts surrounding the validity of the inter vivos trust, almost to the point of being specious.
The waiver that is incorporated in the trust agreement constituted a waiver of any interest then held by William R. Briggs in the property transferred into the inter vivos trust. That trust agreement was never to be subject to probate; indeed it was created to avoid the probate of the trust assets. The statutory right of election is limited to a right to take against the provisions of a will that has been admitted to probate. The statutory provision relating to waivers is limited to that same right of election. Wyo.Stat. § 2-5-102 (1980). That provision does not validate the waiver by William R. Briggs which is incorporated in the trust agreement except by analogy.
The trust agreement could only violate the elective share statute if it were ruled to be a substitute for a will. In upholding the validity of the trust agreement, I am satisfied that the court did not intend to suggest it is a substitute for a will. Yet, by invoking the waiver statute that specifically pertains to the right to elect to take against the will, the court, by implication, seems to suggest that the trust agreement is equivalent to a testamentary disposition by will. I am satisfied the court would not so hold if that issue were presented directly-
I would limit the effect of the waiver statute specifically applying to the elective share of a surviving spouse to an articulation of legislative policy that is appropriately transferred to the case of an inter vivos trust by analogy. See Wendling v. Cundall, 568 P.2d 888 (Wyo.1977). The effect is substantially that of invoking by analogy the rule of Dainton v. Watson, 658 P.2d 79 (Wyo.1983). It makes sense to have the same rules with respect to the validity of a no contest clause and waiver in the case on an inter vivos trust as we have with respect to wills. That appropriately is accomplished by declaring an analogous rule for the case of the inter vivos trust. I am satisfied this is the thrust of the majority opinion, and there is no implication that the inter vivos trust is a substitute for a will which is subject to the probate statutes.