In re the Estate of DeVita

OPINION OF THE COURT

Thompson, J.

The principal issue presented on this appeal, appar*48ently one of first impression, requires us to determine whether a so-called "Spreadout Plan” (hereinafter the plan) involving the payment of future commissions of a life insurance agent, is a testamentary substitute against which his surviving spouse may exercise her statutory right of election. We find that the Surrogate properly considered the plan to be a testamentary substitute within the meaning of EPTL 5-1.1 (b) (1) (E) and properly included it in the decedent’s estate. We further concur in the…