dissenting.
I do not lightly dissent from so thoughtful an opinion as the majority has produced in this case. I readily concede that this is a close case, and I recognize that the litigants have each raised quite plausible arguments. Nevertheless, I must respectfully dissent from the holding of the majority.
I agree with the majority that G.L.1956 § 33-25-2(b) appears to have been enacted by the General Assembly in response to this Court’s holding in Pezza v. Pezza, 690 A.2d 345 (R.I.1997). And I certainly do not question the right of the General Assembly to legislate in this domain as a result of a decision by this Court.
My narrow but significant disagreement with the majority results from my reading of the actual language of the statute, § 33-25-2(b), which the General Assembly enacted after this Court issued its decision in Pezza. Section 33-25-2(b), as enacted by P.L.1999, ch. 444, § 1, provides in pertinent part as follows:
“For purposes of this section, any real estate conveyed by the decedent prior to his or her death, with or without monetary consideration, shall not be subject to the life estate granted in subsection (a) if the instrument or instruments evidencing such conveyance were recorded in the records of land evidence in the city or town where the real estate is located prior to the death of the decedent.” (Emphasis added.)
I am simply not convinced that the decedent (Horace M. Barrett) actually “conveyed” the subject Prudence Island real estate prior to his death — and the statute clearly requires that there be a conveyance for the surviving spouse to be divested of the life estate for which § 33-25-2(a) otherwise provides. I am convinced that the language chosen by the General Assembly (“any real estate conveyed by the decedent”) is not broad enough to encompass the instant transfer to a revocable inter vivos trust.
The quitclaim deed whereby Horace Barrett purportedly conveyed the Prudence Island property to the cotrustees of the trust specifically reserved to Mr. Barrett a life estate with “full power to sell, mortgage, convey or otherwise encumber the life estate and the remainder.” (Emphasis added.) In my view, such an extensive reservation of powers by the grantor derogates fatally from a conclusion that an actual conveyance occurred by virtue of the quitclaim deed sufficient to meet the express requirement of § 33-25-2(b) that the decedent shall have “conveyed” the piece of real estate that, by virtue of said statute, “shall not be subject to” the life estate provisions of § 33-25-2(a).9
*901At the risk of sounding simplistic, my view is that one has not actually “conveyed” if the grantor specifically retains the right to convey to some other person or entity — even though it turns out that the grantor opts not to exercise that retained right to convey in his or her lifetime.
Accordingly, I respectfully dissent.
. The following language from the comment on subsection (2) of § 25 cmt. d. at 385 of the Restatement (Third) Trusts (2003) is consistent with my view:
“[I]n most American jurisdictions the surviving spouse of a married decedent is entitled to a share of the estate of which the spouse cannot be deprived by the decedent’s will in the absence of an election by the spouse to accept something less or different, or nothing, as may be provided by the decedent’s will. Although modern versions of these so-called 'forced' or 'elective’ share statutes vary considerably in lan*901guage and in details of implementation, a married property owner cannot properly circumvent the policy of such statutes through the use of an inter vivos trust that is revocable, directly or indirectly (such as through an unrestricted power of amendment or appointment), by the settlor. This is true even though an outright gift by a married property owner would operate to diminish the eventual elective share of the donor's spouse." (Emphasis omitted.)