In re the Estate of Reynolds

Lawton, J. (dissenting).

I respectfully dissent in part. EPTL 5-1.1 is remedial and should be interpreted to expand and protect the rights of a surviving spouse. The majority’s holding defeats that express legislative intent.

I do not agree with the majority that the facts in this case are sufficiently distinguishable from those in Matter of DeVita (141 AD2d 46) to require a different result. The trust provided that the income from the trust "together with such sums from the trust principal as the Trustees, in their sole and absolute discretion, deem appropriate” be paid to decedent. That right…