Sanditen v. Sanditen , 496 P.2d 365 ( 1972 )

LAVENDER, Justice

(dissenting in part) :

The wife’s petition alleged that her (now deceased) husband, over a period of several years, made gifts of property the title to which stood in his name. She alleged that the gifts only involved property which had been acquired by the joint industry of the parties to the marriage during the marriage. She further alleged — or argued in oral presentation of this matter to this court— that these gifts totaled something like $8,000,000. We are not advised how much this amount represented of all property either acquired by him during the marriage or owned by him at his death. She concluded that such gifts were in fraud of her marital rights in the gifted property. These “marital rights” are said to arise from the fact that if the parties had been divorced she would have been entitled to a “just and reasonable” division of the jointly acquired property because of 12 O.S.1971 § 1278 or to an “equitable * * * division * * *” by virtue of 12 O.S. 1971 § 1275. The basis for these “marital rights” are also said to arise from 84 O.S. 1971 § 44 which provides in effect that a spouse may not effectively limit the share his surviving spouse will inherit in the property owned by him at his death so “that the other spouse (survivor) would receive less in value than would be obtained through succession by law; * * *,” to quote the statute in part. Title 84 O.S.1971 § 213 provides for the share of the surviving spouse upon the death of the partner to the marital venture. It is noted that these statutes providing for the share that the surviving spouse shall inherit, notwithstanding a will of less than such statutory shares, is not limited to the property acquired by the joint industry of the marital partners but may extend to all property owned by the deceased spouse at his death. 84 O.S.1971 § 44: “* * * provided, however, that of the property not acquired by joint industry during coverture the testator be not required to devise or bequeath more than one half thereof in value to the surviving spouse; * *

We are also advised of the duty to support his wife which a husband assumes by virtue of the marriage contract. Title 32 O.S.1971 § 3.

It is noted also that the share a spouse may receive, upon the dissolution of the marriage by divorce, of the property of the other partner to the marriage is to be determined by the court which will hear the divorce proceeding. It is well established that such share may not be one-half of the jointly acquired property, but may be more or less, depending upon many circumstances.

If the situation were such that the husband knew he was about to pass away or was aware that he and his wife were about to be divorced or — to defeat the obligation to support his wife — he made gifts of their jointly acquired property, we would have a situation in which I could probably concur with the result reached by the majority opinion in this case. But here — as I read the plaintiff’s petition — the “fraud” which plaintiff depends upon to vitiate the gifts of property made by her dead husband are not alleged to have been made by him under any of the circumstances mentioned in this paragraph, but are said to be fraudulent as to her only because the gifts of property thereby deprived her of that much property which “might” have been awarded to her if the parties had gotten a divorce, or that she “might” have received by way of inheritance upon the death of her husband provided he hadn’t sold the property (and spent the money) before he died. The “contingent marital rights” referred to in the majority opinion are in my view entirely too speculative and flimsy to form the basis for allowing a surviving spouse to void the other spouse’s gifts of property made over a period of many, many years while they were living together as man and wife.

This court’s previous decisions in York v. Trigg (1922), 87 Okl. 214, 209 P. 417, Farrell v. Puthoff (1903), 13 Okl. 159, 74 P. 96, and Garrison v. Spencer (1916), 58 Okl. 442, 160 P. 493, as well as Catron v. First National Bank & Trust Co. of Tulsa (1967), 434 P.2d 263 persuade me to the opposite conclusion from the majority opinion regarding the trial court’s decision sustaining the defendant’s demurrers to the plaintiff’s petition. I would affirm that decision of the trial court.

I respectfully dissent to that portion of the majority opinion discussed herein. I express no view regarding the court’s disposition of the jurisdictional question.