Which action cannot satisfy the elective share by the decedent?

• A. Creating a testamentary trust of the elective share amount with lifetime income to the spouse
• B. Transferring property by joint tenancy to the spouse
• C. Establishing a revocable living trust for the spouse
• D. Making a cash gift to the spouse before death

Answer: (A)

The elective share gives a surviving spouse a right to a portion of the decedent’s estate, and that portion is satisfied by transfers that actually give the spouse a present or future interest in property from the decedent. A device that merely provides income to the spouse, without transferring a meaningful stake in the decedent’s assets, does not fulfill that right.

A testamentary trust set up to fund the elective share amount with lifetime income to the spouse does not satisfy the elective share because the spouse would receive only income from the trust for life, not a guaranteed share of the estate’s principal. The corpus of the trust may pass to other beneficiaries after the spouse’s death, and the spouse’s interest is not a present, fixed portion of the estate at death.

By contrast, transferring property to the spouse in joint tenancy with right of survivorship, establishing a revocable living trust for the spouse that grants a present beneficial interest, or making a cash gift to the spouse before death all create an actual or potential transfer of property to the spouse that can count toward the elective share.