                           [J-48-2017][M.O. – Wecht, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


IN RE: TRUST UNDER DEED OF DAVID               :   No. 97 MAP 2016
P. KULIG DATED JANUARY 12, 2001                :
                                               :   Appeal from the Order of the Superior
                                               :   Court at No. 2891 EDA 2014, dated
                                               :   12/24/15, reconsideration denied
                                               :   2/23/16, affirming the Decree of the
                                               :   Court of Common Pleas of Bucks
APPEAL OF: CARRIE C. BUDKE AND                 :   County, Orphan’s Court Division, at No.
JAMES H. KULIG                                 :   2013-0170 dated 9/12/14
                                               :
                                               :
                                               :   ARGUED: May 10, 2017




                                 DISSENTING OPINION


CHIEF JUSTICE SAYLOR                                     DECIDED: December 19, 2017

       I agree, in substantive part, with the analyses and conclusions of the orphan’s

court and the Superior Court, namely that, with respect to Section 7710.2 of the

Probate, Estates and Fiduciaries Code, see 20 Pa.C.S. §7710.2, the enactment of this

model law provision plainly reflects the Legislature’ intention for inter vivos trusts to be

construed the same as testamentary trusts, including the protections for pretermitted

spouses pursuant to Section 2507(3), see id. §2507(3).

       To the degree that Section 7710.2 may be viewed as ambiguous, as the majority

concludes, see Majority Opinion, slip op. at 18, resort to the commentary is appropriate

to determine the intention of the General Assembly. See 1 Pa.C.S. §1939 (“Use of

comments and reports”); accord 20 Pa.C.S., Ch. 77, Refs & Annos, Jt. St. Govt. Comm.
Comment--2005 (“These comments may be used in determining the intent of the

General Assembly. See 1 Pa.C.S. §1939 and In re Martin's Estate, 365 Pa. 280, 74

A.2d 120 (1950).”). In this respect, the comments to Section 7710.2 are clear regarding

the application of the pretermitted spousal provision in the inter vivos trust context:

“This section imports 20 Pa.C.S. [§]2507 . . ..” 20 Pa.C.S. §7710.2, Jt. St. Govt. Comm.

Comment--2005. The Uniform Law Comment provides additional context, explaining

the rationale supporting the adoption of this provision, i.e., that the “revocable trust is

used primarily as a will substitute, with its key provision being the determination of the

persons to receive the trust property upon the settlor’s death.”          Id., Uniform Law

Comment (emphasis added); see also Danielle J. Halachoff, Comment, No Child Left

Behind: Extending Ohio's Pretermitted Heir Statute to Revocable Trusts, 50 AKRON L.

REV. 605, 623 (2016) (“Because revocable trusts are functionally equivalent to wills . . .,

the basis for inconsistent treatment of wills and revocable trusts is lacking.” (footnotes

omitted)).

       Given this commentary-incorporated reasoning and the express cross-reference

to the pretermitted spousal section, I remain unpersuaded that the Legislature was

required to enact a point-by-point codification of all the rules of construction it sought to

apply to inter vivos trusts, rather than proceed via the broad provision of Section 7710.2.

Compare Majority Opinion, slip op. at 24 (“[T]he fact that the legislature declined

expressly to identify the effect that Wife imputes to Section 7710.2 provides powerful

evidence that the General Assembly did not intend it.”), with 20 Pa.C.S. §7710.2,

Uniform Law Comment (“Instead of enacting this section, a jurisdiction . . . may wish to

enact detailed rules on the construction of trusts . . ..” (emphasis added)). Accordingly, I

respectfully dissent.

       Justice Baer joins this dissenting opinion.


                             [J-48-2017][M.O. – Wecht, J.] - 2
