Edward S. Ferguson V v. Katina Helen Hawe Critopoulos

REL:09/19/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
____________________
1130486
____________________
Edward S. Ferguson V
v.
Katina Helen Hawe Critopoulos
Appeal from Mobile Probate Court
(No. 12-2556)
BOLIN, Justice.
Edward S. Ferguson V (hereinafter referred to as "Tiger")
appeals from the probate court's judgment awarding an omitted-
spouse share of his stepfather's estate to Katina Helen Hawe
Critopoulos.
1130486
Dimitrios Critopoulos (hereinafter "the decedent") died
on July 15, 2012. The decedent had no children. His parents
predeceased him, and he had no siblings. At the time of his
death, the decedent was married to Katina. The couple had wed
less than a year earlier on August 20, 2011. The decedent had
a valid will at the time of his death, but the will, which was
executed prior to their marriage, made no provision for
Katina.
The decedent's first wife, Dorothy Marie Hayes
Critopoulos, had been married to the decedent for 35 years
when she predeceased him in 2009. Dorothy had three children
from a prior marriage: Crystal M. Hanawalt, Tiger, and Timothy
D. Ferguson ("Tim"). Although the decedent did not adopt
Crystal, Tiger, and Tim, it is undisputed that the three
enjoyed a parent-child relationship with the decedent.
Crystal, Tiger, and Tim were named as the residual legatees
under the decedent's will.
On December 18, 2012, Tiger filed a petition to probate
the decedent's will in Mobile County. The executrix named in
the decedent's will was Dorothy, and Crystal was named the
successor. Crystal declined appointment. The general
2
1130486
administrator for Mobile County was then appointed to
represent the decedent's estate.
On April 9, 2013, Katina filed a petition for an omitted-
spouse share of the decedent's estate pursuant to § 43-8-90,
Ala. Code 1975. On May 29, 2013, Crystal, Tiger, and Tim
filed a response to Katina's petition, in which they asserted
that the decedent had provided for Katina outside the will and
that, therefore, Katina was not entitled to an omitted-spouse
share under § 43-8-90(a). The probate court held a bench
trial, and on December 23, 2013, it entered the following
order:
"This cause came before the Court on October 16
and 17, 2013 on the Petition for Omitted Spouse
Share filed by Katina Helen Hawe Critopoulos
('Katina') and the Answer and Response to Petition
for Omitted Spouse's Share filed by Crystal M.
Hanawalt ('Crystal') and Edward S. Ferguson, [V]
('Tiger')....
"The Decedent, Dimitrios P. 'Jim' Critopoulos
('Decedent'), was born on November 1, 1952 in
Greece. The Decedent died in Mobile County, Alabama,
on July 15, 2012. The Decedent was 52 years old at
the time of his death. By all accounts, the
Decedent's death was not expected. At the time of
his death the Decedent was employed by the United
States Department of Labor - OSHA Division.
"The Decedent had no children. The Decedent's
parents predeceased the Decedent. The Decedent had
no siblings. At the time of his death the Decedent
3
1130486
was married to Katina. They were married on August
20, 2011. Consequently, the Decedent and Katina were
married to each other for approximately 9 months.
"The Decedent was married for many years to
Dorothy Marie Hayes Critopoulos ('Dorothy'). Dorothy
died on July 28, 2009. Dorothy was also survived by
three children, from a relationship preceding her
relationship with the Decedent, namely: Crystal,
Tiger, and Timothy D. Ferguson ('Tim'). Crystal,
Tiger, and Tim are all living. It is undisputed that
Crystal, Tiger, and Tim enjoyed a parent-child
relationship with the Decedent both before Dorothy's
death and after Dorothy's death. However, the
Decedent's relationship with Tim was strained at the
time of the Decedent's death. The Decedent did not
adopt Crystal, Tiger, and Tim.
"The Decedent owned two residences at the time
of his death: (1) the residence located [on]
Baratara Drive in Chickasaw ('Baratara Property'),
and (2) the residence located [on] East Third Street
in Chickasaw ('Third Street Property'). The Decedent
and Katina resided in the Baratara Property at the
time of the Decedent's death and Tim resided in the
Third Street Property.
"It is undisputed that the Decedent was
contemplating the formulation and execution of a new
last will and testament at the time of the
Decedent's death. A new last will and testament was
not finalized because of the Decedent's indecision
about the Third Street Property and matters relating
to Tim. It is also noteworthy that all of the
parties agree that the Decedent was an intelligent
person.
"Katina returned to California after the
Decedent's death. Katina currently resides in
California.
"Decedent's Last Will and Testament
4
1130486
"On September 27, 2002, the Decedent made and
published his last will and testament ('Will'). The
Will was admitted to probate by the Court on
February 4, 2013. Frank H. Kruse, Esq. ('Kruse'),
General Administrator for Mobile County, was
appointed as the personal representative of the
Decedent's estate. Letters of Administration on the
Annexed Will were issued to Kruse on March 1, 2013.
"The Will provides in pertinent part as follows:
"'FOUR
"'Provided that she survive me, I
GIVE, DEVISE and BEQUEATH my residential
homeplace, (including the contents and
furnishings therein), all real property
wheresoever situated, all motor vehicles
(including any automobiles, trucks, boats,
all terrain vehicles), and all cash assets
(including but not limited to stocks,
bonds, certificates of deposits, individual
retirement accounts, thrift accounts,
savings accounts, checking accounts, and
cash on hand) to my wife, DOROTHY MARIE
CRITOPOULOS.
"'FIVE
"In the event that my wife, DOROTHY
MARIE CRITOPOULOS, shall not survive me,
then to my stepchildren, namely, CRYSTAL
MARIE COLLINS, EDWARD S. FERGUSON, [V], AND
TIMOTHY D. FERGUSON, I give, devise and
bequeath the following: my residential
homeplace, (including the contents and
furnishings therein), all real property
wheresoever situated, all motor vehicles
(including any automobiles, trucks, boats,
all terrain vehicles), and all cash assets
(including but not limited to stocks,
bonds, certificates of deposits, individual
5
1130486
retirement accounts, thrift accounts,
savings accounts, checking accounts, and
cash on hand) in equal shares to share and
share alike; if any of my stepchildren
predecease me, their share shall go to
their children per stirpes.
"'In order for a designated
beneficiary to be deemed to have survived
me, said person must survive me by more
than thirty (30) days.'
"Decedent's Relationship With Katina
"The Decedent first met Katina during Dorothy's
lifetime. It is undisputed that, approximately 12
years prior to his death, the Decedent had a
romantic extramarital relationship with Katina,
while the Decedent was married to Dorothy. No
testimony was presented as to whether Dorothy was
aware of the Decedent's relationship with Katina.
Tiger and Crystal didn't learn of the relationship
until Katina moved to Mobile.
"The Decedent and Katina had contact with each
other following Dorothy's death. Katina came from
California to Mobile, Alabama, with all of her
personal belongings in her suitcase. The Decedent
purchased Katina's airline ticket to travel from
California to Mobile. According to Bryan Robert
Smith-Angel ('Smith'), the Decedent's best friend,
Katina told the Decedent that Katina would not come
to Mobile unless they got married.
"The Decedent considered having a prenuptial
contract with Katina and deliberately chose not to
pursue such. The Decedent and Katina married on
August 20, 2011. During the marriage the Decedent
purchased a motor vehicle for Katina. The Decedent
also paid the apartment rental for Katina's
daughter, who resided in California after Katina
moved to Mobile.
6
1130486
"Decedent's Estate
"As noted earlier, the Decedent was gainfully
employed in the United States Civil Service at the
time of the Decedent's death. At the time of his
death, the Decedent owned the following property
with the indicated estimated value:
"Property Estimated
Value
"Baratara Property $l52,500.00
"Third Street Property 80,500.00
"'Greek Bonds' held by HSBC unknown1
"U.S. Savings Bonds 16,700.00
"Regions Bank account 89,342.81
"Money Concepts Account 45,000.00
plus2
"E-Trade Account transferred
to estate
account
(Regions)
"Thrift Savings Plan Approximately
$422,170.003
"Household items, furniture $6,280.004
and furnishings at Baratara
Property
"Fine jewelry $4,671.00
"Watches $687.00
"Firearms $4,000.005
7
1130486
"2007 Chevrolet Tahoe $23,500.00
[sport-utility vehicle]
"Excluding the value of the Thrift Savings Plan
and the Money Concepts Account, the value of the
Decedent's estate at the time of the Decedent's
death was approximately $378,200. Of said amount,
$233,000 is attributed to the estimated value of two
residences. The real estate market in the Mobile
area has been and remains depressed. The real estate
holdings comprise 61.6 percent of the Decedent's
total estate.
"Additionally, the Decedent had the following
life insurance policies:
"Policy Estimated Value
"FEGLl (administered approx. $ 542,200.006
by MetLife)
"Army Aviation Center FCU $2,061.787
"ASC $100,000.008
"Finally, the Decedent maintained a 'trust
account' for one of Crystal's daughters, which had
approximately $8,000 at the time of the Decedent's
death.
"Katina's Separate Estate at Time of Marriage
"At the time of Katina's marriage to the
Decedent, Katina had no savings and was 'working
paycheck to paycheck.' Further, Katina owned no real
estate. Several months before the Decedent died,
Katina worked. Katina had a separate checking
account.
"What Katina Has Received as a Result of the
Death of the Decedent
8
1130486
"At the time of the Decedent's death, the
Decedent and Katina had a joint checking account
with rights of survivorship. Katina also had a
separate checking account. Katina received the funds
in these checking accounts. The Decedent executed
the appropriate documentation prior to his death to
facilitate Katina receiving: (1) a share
($211,084.85) of the Decedent's 'Thrift Savings
Plan' benefits; (2) fifty (50%) share ($271,101.02)
of the Decedent's life insurance benefits (through
the 'FEGLI' program administered by MetLife); (3)
$75,517.98 of lump sum death benefits (reduced
approximately $ 15,000.00 for anticipated federal
taxes); and (4) $ 2,061.78 of life insurance through
the Army Aviation Center Federal Credit Union.
Katina also received $3,325.59 from the United
States Government (the Decedent's employer) for
unpaid compensation due the Decedent. Finally,
Katina receives a monthly stipend of $532.37 as the
Decedent's surviving spouse. The lump sum payments
to Katina total $548,091.22.
"What Dorothy's Children Have Received as a
Result of the Death of the Decedent
"Crystal and Tiger each received 25 percent
shares of the Decedent's Thrift Savings Plan and
life insurance benefits (through the 'FEGLI' program
administered by MetLife). Tiger and Crystal were
also the death beneficiaries of the Money Concepts
Account. Tiger, Crystal, and Tim were the named
beneficiaries of the ASC insurance policy. Tiger
testified that Tiger had received the policy assets
as a result of the Decedent's death:
"Thrift Savings - $105,542.42
"FEGLI (MetLife) - $135,550.51
"Money Concepts - $45,000.00
"ASC Insurance Policy - 1/3 of $100,000
9
1130486
"Altogether, Dorothy's children have collectively
received approximately $672,186.00 a result of the
Decedent's death.9
"Decedent's Comments Regarding Disposition of
Decedent's Estate
"When Dorothy died, title to most, if not all,
of the Decedent's and Dorothy's assets were held
joint with rights of survivorship or in one of the
spouse's name with the other spouse individual as
the beneficiary upon death. The Decedent was the
beneficiary of Dorothy's individual retirement
account, with Dorothy's children named as contingent
beneficiaries. The Decedent received the assets of
Dorothy's individual retirement account upon
Dorothy's death.
"Tiger testified that the Decedent told Tiger
before the Decedent and Katina married that: (1) the
Decedent and Katina planned to get married, (2) any
property the Decedent acquired before his marriage
to Katina would be devised by the Decedent to Tiger,
Crystal, and Tim upon the Decedent's death, and (3)
any property the Decedent acquired after his
marriage to Katina would be devised to Katina. After
the Decedent married Katina, Tiger's relationship
with the Decedent continued. There were periodic
visits. According to Tiger, on one such visit the
Decedent told Tiger that the Decedent intended to
make financial provisions for Katina, although he
(the Decedent) did not know how he would do so.
"Smith testified that the Decedent told Smith
that he (the Decedent) planned to formulate a new
last will and testament that would provide for
Katina, Tiger, and Crystal. According to Smith the
Decedent wanted to provide for Katina because 'she
was his wife and he loved her.'
"Smith testified that approximately three to
five months preceding the Decedent's death the
10
1130486
Decedent and Smith had a conversation about a new
estate plan the Decedent proposed formulating. Smith
testified that in said conversation the Decedent
stated that the Decedent wanted to: (1) devise the
Baratara Property to Katina; (2) devise the Third
Avenue residence to Tiger and Crystal (in order to
afford Tim a place to reside in fulfillment of a
promise the Decedent made to Dorothy before her
death); (3) name Katina as the beneficiary of an
existing life insurance policy where Dorothy was the
named beneficiary; and (4) name Katina, Tiger, and
Crystal as the beneficiaries of the Decedent's
'government life insurance' and other life insurance
on the Decedent's life. Smith testified that he told
the Decedent that he (Smith) objected to the
Decedent's proposal, saying 'you can't do that to
the kids -- you need to split the property equally
amongst them.'
"Crystal and the Decedent conversed about a
month prior to the Decedent marrying Katina, and the
Decedent stated that Katina was not interested in
the Decedent's money. Crystal also testified that
following the Decedent's marriage to Katina, Crystal
and the Decedent spoke several times regarding the
Third Street residence. Crystal testified that the
Decedent told Crystal that the Decedent had promised
Dorothy that Tim would have a place to live. The
Decedent was afraid that Tim would lose the Third
Street residence if it was deeded outright to Tim
and the Decedent wanted to give the house to Crystal
with the understanding that Tim could reside in the
residence. Crystal further testified that she
objected to the Decedent devising the Third Street
residence to Crystal because she did not want the
responsibility. Crystal testified that she had no
discussions with the Decedent regarding the
Decedent's other assets. Finally, about a month
before the Decedent died, Crystal testified that the
Decedent told Crystal with reference to Katina that
'I will make sure she's taken care of if something
happens to me.'
11
1130486
"Katina testified that the Decedent told her
that upon his death the Decedent desired: (1) Katina
receive the Baratara Property; (2) Tiger and Crystal
receive the Third Street Property, with Tim
continuing to reside in said residence; (3) other
financial arrangements would be made to provide
compensation to Tiger and Crystal because Dorothy
had lived in and helped acquire the Baratara
Property; and (4) all of the Decedent's remaining
assets with the exception of various firearms and
household furnishings and personal property
purchased prior to the Decedent and Katina being
married, would be devised to Katina.
"Events Following Decedent's Death
"There was electronic mail ('e-mail') dialogue
between Katina and Crystal following the Decedent's
death regarding the disposition of the Decedent's
estate. In an e-mail message dated August 11, 2012
(approximately one month following the Decedent's
death), Katina related to Crystal that she (Katina)
knew 'Jim's [the Decedent] wishes ... and I'm
willing to execute them. This way I can be the "fall
guy" with Tim and it not interfere with your sibling
relationship.' This e-mail message was sent days
before Katina and Tiger met with Charles Hicks
('Hicks'), a lawyer in Mobile, Alabama.
"Hicks met with Katina on four (4) or five (5)
occasions to discuss the Will. Katina, Tiger, and
Smith were physically present at the initial meeting
and Crystal participated by telephone. At the
initial meeting, the persons present discussed the
Decedent's intentions and wishes. At said meeting
Katina indicated that the Decedent wanted the bulk
of his estate to go to Katina, Crystal, and Tiger.
Katina further indicated that the Decedent had had
a falling out with his other stepson (by deduction
this was Tim). Katina stated that the Decedent's
wishes were for Tim to receive nothing of the
Decedent's estate.
12
1130486
"At the meeting with Hicks, the parties
attempted to reach an agreement regarding the
distribution of the Decedent's assets in a manner
that differed from the provisions of the Will (Tim
would receive less than the others). Hicks testified
that the parties recognized that any agreement to
distribute the Decedent's assets in a manner
different from what the Will provided would require
Tim's agreement. Hicks prepared and filed with the
Court the petition to probate the Will. As noted
above, the Will was admitted to probate without
objection. There were several follow-up
conversations between Hicks and Katina and Tiger.
The parties could not reach an agreement. Based upon
comments made in the subsequent conversations, Hicks
determined that he had a conflict of interest and
Hicks withdrew from representation of any party in
interest in this cause.
"In a document dated February 1, 2013, that was
presented to Tiger and Crystal, Katina stated that
she expected the following:
"1. 50 percent of the following assets:
"A. Baratara Property
"B. Third Street Property
"C. U.S. Savings Bonds
"D. All accounts administered by Money Concepts
"E. Scottrade accounts
"F. E Trade accounts
"G. 2007 Chevy Tahoe
"H. All accounts held at HSBC in Greece
"2. One firearm the Decedent purchased shortly
before his death
"3. The household furnishings purchased while the
Decedent and Katina were a couple (identified as the
living room furniture, informal dining set, bed,
television, wedding gifts, and Greek language
recordings).
13
1130486
"Posture of Decedent's Estate Proceeding
"On April 9, 2013, Katina filed her 'Petition
for an Omitted Spouse's Share Pursuant to Ala. Code
1975 § 43-8-90, or, in the Alternative for Further
Relief.' In her prayer for relief Katina requested
that the Court determine that Katina was the
Decedent's omitted spouse. Alternatively, Katina
requested that the Court award Katina her elective
share pursuant to Ala. Code 1975, § 43-8-70, and the
allowance provided in Ala. Code 1975, §§ 43-8-110,
111 and 112. Later, Katina withdrew her request for
an elective share.
"
"1The parties apparently all agree that the
value of the Greek bonds is questionable.
"2This account was payable on death to Tiger and
Crystal. Tiger testified that he had received
$45,000 as a result of this asset. The amount
Crystal received is unknown.
"3The pay-on-death beneficiaries of the Plan
were Katina (50 percent), Tiger (25 percent) and
Crystal (25 percent).
"4According to her February 1, 2013, statement
(see below), Katina has possession of the living
room furniture, informal dining set, bed,
television, wedding gifts and Greek language
recordings that were in the Baratara Property. It
is uncertain as to whether these assets are included
in the Personal Representative's inventories.
"5According to her February 1, 2013, statement,
Katina has possession of one firearm (described as
being a 'handgun'). It is uncertain as to whether
this firearm is included in the Personal
Representative's inventories.
14
1130486
"6The pay-on-death beneficiaries of the policy
were Katina (50 percent), Tiger (25 percent) and
Crystal (25 percent).
"7Katina was the beneficiary of this policy.
"8The pay-on-death beneficiaries of the policy
were Tiger, Crystal and Tim (one-third each).
"9Computation presumes that Crystal also
received $45,000 as a result of being a 50 percent
death beneficiary of the Money Concepts Account."
The probate court went on to discuss the applicable
caselaw regarding § 43-8-90. The probate court listed
several points a court is to consider in making omitted-spouse
determinations. The probate court noted that § 43-8-90
provides that an omitted spouse shall receive the same share
of the estate he or she would have received if the decedent
had left no will. The intestate share for a surviving spouse
is set out in § 42-8-41, Ala. Code 1975, and the probate court
noted that because the decedent had no biological children and
no surviving parents, Katina would be entitled to all of the
decedent's intestate estate.
The probate court concluded:
"In the instant cause, Tiger and Crystal have
the burden of proving that the transfers by the
Decedent to or for the benefit of Katina were
intended to be in lieu of a testamentary provision.
As noted above, an indication of such can be
15
1130486
obtained by comparing the value of the probate
estate to the value of the property the respective
interested parties have received or will receive.
Tiger and Crystal provided such information to the
Court. However, the Alabama appellate cases
discussed herein and the decisions of other states'
appellate courts cited with approval by the Alabama
Supreme Court note that there are other factors to
be considered as well by a trial court when trying
to determine a testator's intent in this type of
matter.
"Tiger and Crystal provided no other evidence to
support their position that at the time the Decedent
made the beneficiary designations that made Katina
a beneficiary, the Decedent intended by those
designations and actions that Katina receive said
benefits in lieu of a testamentary provision.
"Further, the actual documents reflecting the
beneficiary designations for the Decedent's Thrift
Savings Plan and FEGLI life insurance benefits were
not introduced into evidence. Consequently, the
Court is unable to consider the timing of said
actions by the Decedent in relation to the
Decedent's statements to Tiger, Crystal, Smith, and
Katina that the Decedent wanted to revise the Will
and update his estate plan. There was no testimony
that the Decedent told anyone that he was making the
beneficiary designations in question that benefited
Katina in lieu of a testamentary provision in favor
of Katina.
"Testimony was presented that the Decedent
considered having a prenuptial contract with Katina
and deliberately chose not to pursue such. The
deliberate act of not having a prenuptial contract
is noteworthy in the instant cause.
"Tiger and Crystal cited Wester [v. Baker, 675
So. 2d 447 (Ala. Civ. App. 1996),] in support of
their position. As noted above, in Wester was
16
1130486
testimony that the decedent stated to a
disinterested person that the decedent was pleased
with her last will and testament the way it had been
drafted and she would leave it that way. Wester, 615
So. 2d at 448. As noted by Katina, it is clear that
in Wester the decedent did not plan to change the
decedent's last will and testament. The undisputed
testimony in this cause is the exact opposite: (1)
the Decedent was not happy with the Will; (2) the
Decedent desired to change the Will; and (3) the
Decedent was struggling with how to provide for
Katina, address his testamentary provision for Tim,
and address the Third Street Property.11
"The Court is cognizant that: (1) the purpose of
the omitted spouse statute is to preserve the
remainder of the will, while still providing for the
omitted spouse; (2) by ruling that Katina is an
omitted spouse, coupled with the provisions of Ala.
Code 1975, § 43-8-41, practically speaking, Tiger,
Crystal, and Tim will not participate as
beneficiaries of the Decedent's probate estate and
Katina will be the only beneficiary of the
Decedent's probate estate; and (3) Katina will
receive more than she acknowledged that the Decedent
intended for her to receive upon his death.
"At first blush, this result appears harsh.
However, it must be remembered that: (1) surviving
spouses are accorded special rights in the law;12 (2)
children of decedents13 can be and are frequently
disinherited by their parents;14 (3) adult children
of a decedent are not accorded any special status in
this aspect of probate law; and (4) the Alabama
Legislature specifies Alabama's statutory-positive
law, not the courts. Notwithstanding such, it must
also be noted that Tiger, Crystal, and Tim have all
received substantial amounts as a result of the
Decedent's death, which the Decedent was not legally
required to provide to them. Finally, it must be
remembered that this Court (and all courts) make
rulings based upon the law, not what a particular
17
1130486
person in a position to make a decision likes or
considers moral. Because of the facts in this case,
Katina will receive more of the Decedent's estate
than she acknowledged the Decedent desired for her
to receive. Such is a moral matter for Katina to
ponder and act as her conscience dictates.
"Upon consideration of demeanor of all of the
witnesses, the documentary evidence introduced and
applicable law, the Court is of the opinion, for the
reasons stated herein, that Tiger and Crystal failed
to meet their burden of proving that the transfers
by the Decedent to or for the benefit of Katina were
intended to be lieu of a testamentary provision.
"Upon consideration of demeanor of all the
witnesses, the documentary evidence introduced and
applicable law, the Court is of the opinion, for the
reasons stated herein, that Katina is an omitted
spouse in this cause and that she should be accorded
such status in the Decedent's estate.
"________________
"11The Court notes that Tim is in possession of
the Third Street Property. There was no evidence
that the Decedent ever told Tim or any other party
in interest that the Decedent was conveying or
gifting the Third Street Property to Tim. And there
is no specific devise of the Third Street Property
to Tim in the Will. Consequently, the Court found
no legal bases to rule that Tim now owns the Third
Street Property or to declare that Tim would receive
the Third Street Property. See also, Ala. Code
1975, §§ 8-9-2 and 35-4-20.
"12Surviving spouses' special status is
reflected in allowances, exemptions available to
them, along with the right to elect against a will
or to assert rights as an omitted spouse, as was
done by Katina in the instant cause.
18
1130486
"13In the instant cause it is undisputed that
Tiger, Crystal, and Tim are not the Decedent's
children. The only basis for their having an
interest in the Decedent's estate is their being
named beneficiaries in the Will.
"14It is very common for married persons with
children to provide in their last will and testament
that their entire estate will be devised to their
surviving spouse upon their death, even if there are
children of said marriage. Typically when there is
a second spouse and children of a prior
relationship, testators make testamentary provisions
for their surviving spouse or otherwise they have a
prenuptial contract."
Tiger filed a timely appeal.
Standard of Review
Because the probate court received evidence ore tenus,
our review is governed by the following principles:
"'"'[W]hen a trial court hears ore tenus
testimony, its findings on disputed facts are
presumed correct and its judgment based on those
findings will not be reversed unless the judgment is
palpably erroneous or manifestly unjust.'"' Water
Works & Sanitary Sewer Bd. v. Parks, 977 So. 2d 440,
443 (Ala. 2007)(quoting Fadalla v. Fadalla, 929 So.
2d 429, 433 (Ala. 2005), quoting in turn Philpot v.
State, 843 So. 2d 122, 125 (Ala. 2002)). '"The
presumption of correctness, however, is rebuttable
and may be overcome where there is insufficient
evidence presented to the trial court to sustain its
judgment."' Waltman v. Rowell, 913 So. 2d 1083, 1086
(Ala. 2005)(quoting Dennis v. Dobbs, 474 So. 2d 77,
79 (Ala. 1985)). 'Additionally, the ore tenus rule
does not extend to cloak with a presumption of
correctness a trial judge's conclusions of law or
19
1130486
the incorrect application of law to the facts.'
Waltman v. Rowell, 913 So. 2d at 1086."
Retail Developers of Alabama, LLC v. East Gadsden Golf Club,
Inc., 985 So. 2d 924, 929 (Ala. 2007).
Discussion
Section 43-8-90 provides:
"(a) If a testator fails to provide by will for
his surviving spouse who married the testator after
the execution of the will, the omitted spouse shall
receive the same share of the estate he would have
received if the decedent left no will unless it
appears from the will that the omission was
intentional or the testator provided for the spouse
by transfer outside the will and the intent that the
transfer be in lieu of a testamentary provision be
reasonably proven.
"(b) In satisfying a share provided by this
section, the devises made by the will abate as
provided in section 43-8-76[, Ala. Code 1975]."
In Hellums v. Reinhardt, 567 So. 2d 274 (Ala. 1990), this
Court addressed, for the first time, the interpretation of §
43-8-90 and the burden of proof in actions brought pursuant to
the omitted-spouse statute. We recognized that § 43-8-90 was
based upon the Uniform Probate Code ("UPC") drafted by the
National Conference of Commissioners on Uniform State Laws:
"The purpose of § 43–8–90, which is based on UPC
§ 2–301, is to remedy the unintentional
disinheritance of a spouse when the decedent's will
was executed before their marriage. The adoption of
20
1130486
that section reflects 'the view that the intestate
share of the spouse is what the decedent would want
the spouse to have if he had thought about the
relationship of his old will to his new situation.'
Commentary to § 43–8–90."
567 So. 2d at 277.
The Hellums Court looked to other states that had adopted
versions of the UPC's omitted-spouse provision. The Court
concluded that the burden of proof that must be met is that
once the surviving spouse proves that he or she was omitted
from the will, the burden of proof then shifts to the
proponent of the will to show that the testator provided for
the surviving spouse by inter vivos transfers and that those
transfers were intended to be in lieu of a testamentary
provision. This interpretation was consistent with the courts
in North Dakota and Arizona as set out in In re Estate of
Knudsen, 342 N.W.2d 387 (N.D. 1984), and In re Estate of
Beaman, 119 Ariz. 614, 583 P.2d 270 (Ariz. Ct. App. 1978),
respectively. The Court stated:
"Shifting the burden to the proponent of the will to
prove that the testator provided for the spouse
outside the will is most consistent with the terms
of the statute, which requires that the will make
apparent an intent to omit the future spouse or that
the testator's intent to substitute an inter vivos
transfer for a testamentary provision be reasonably
proven."
21
1130486
567 So. 2d at 277. The Court went on to address inter vivos
transfers that have been held to be in lieu of testamentary
provisions, such as the opening of joint-tenancy checking
accounts and savings accounts and the assignment of retirement
or insurance benefits as set out in In re Estate of Taggart,
95 N.M. 117, 619 P.2d 562 (N.M. Ct. App. 1980). The Court
also noted other transfers that would satisfy this
requirement, as set out in Annot., 11 A.L.R. 4th 1213 (1982).
In Hellums, the decedent executed her will on June 29,
1987. She married Hellums on May 20, 1988, and remained
married to him until her death on December 1, 1988. No
evidence was presented that the decedent gave Hellums any
inter vivos gifts, and the decedent's will did not contain any
language indicating that the decedent intended to omit a
future spouse or restrict a future spouse's inheritance.
Holding that the probate court had erred in finding that
Hellums was not entitled to an intestate share as an omitted
spouse, this Court reversed the judgment.
In Becraft v. Becraft, 628 So. 2d 404 (Ala. 1993), the
widow petitioned for an omitted-spouse share of the decedent's
estate. The widow showed her eligibility as an omitted spouse
22
1130486
under § 43-8-90 by presenting evidence indicating that she was
married to the decedent until his death seven months after the
marriage. The decedent had a will at the time of his death.
However, that will had been written years earlier and left his
entire estate to Barbara, his wife at time the will was
executed. The decedent's will also provided that, if Barbara
predeceased him, the estate would go their children. It was
undisputed that the decedent made the widow the beneficiary of
a $25,000 life-insurance policy. The issue was whether the
children, as proponents of the will, reasonably proved that
the decedent intended the insurance proceeds to be in lieu of
a testamentary provision. The probate court concluded that the
children had not carried their burden of showing that the
insurance policy was given in lieu of a testamentary
provision. The children's testimony that the decedent
intended his estate to go them was contradicted by the widow's
testimony. The probate court also considered the
circumstances surrounding the decedent's marriage and death.
The probate court also considered the amount of the insurance
proceeds and the size of the intestate share. We affirmed the
probate court's judgment. We noted that the size of an inter
23
1130486
vivos gift or one that passes outside the estate in relation
to the intestate share is relevant to the question whether the
gift was intended to be in lieu of a testamentary provision
but that there is no requirement that an inter vivos or extra-
estate gift be equal to or approximately the same as an
intestate share to qualify as a transfer in lieu of a
testamentary provision.
In Kellum v. Dutton, 706 So. 2d 1179 (Ala. 1997), the
husband filed a petition against his deceased wife's estate,
seeking a share as an omitted spouse. In 1988, the wife had
executed a will leaving her residual estate to her nephew and
his wife. On December 13, 1991, the parties entered into a
prenuptial agreement, conditioned upon their future marriage,
whereby each waived and released "all rights" to the other's
estate. On December 14, 1991, the parties married. In 1994,
the wife died. The husband was not entitled to a share of the
wife's estate as a surviving spouse omitted from the wife's
1988 will, which predated their marriage. The prenuptial
agreement was a vehicle of transfer, outside the will, and
constituted sufficient proof of the wife's intent that that
24
1130486
inter vivos transfer be in lieu of making provisions for the
husband in her will.
The Court of Civil Appeals in Wester v. Baker, 675 So. 2d
447 (Ala. Civ. App. 1996), upheld the probate court's holding
that the husband was not entitled to a share as an omitted
spouse. The wife had executed a will in 1972, naming her
niece as the sole beneficiary and the executrix of her will.
The wife married the husband in 1973. In 1974, they purchased
real property in joint tenancy with right of survivorship, and
they lived on this property. The wife had another parcel of
property. The wife died in 1994. The husband petitioned the
probate court to receive a share of the wife's estate as an
omitted spouse. The niece, as the proponent of the will,
presented evidence from one of the wife's sisters indicating
that she and the wife had discussed the will about a year
before the wife's death and that the wife had helped the
husband purchase the house so that he would have a home of his
own and so that she would not have to change her will. There
was also testimony from the wife's sister-in-law that the wife
told her that the husband had been pestering her to change the
25
1130486
will but that she was pleased with the will and would leave it
the way it was.
The purpose of § 43-8-90 is to avoid an unintentional
disinheritance of the spouse of a testator who had executed a
will prior to the parties' marriage. It serves to give effect
to the probable intent of the testator and protects the
surviving spouse. The operative effect of § 43-8-90 is to
carve out an intestate share as a vehicle to carry out the
probable intent of the testator and to protect the omitted
spouse. Section 43-8-90 goes on to provide two exceptions to
allowing an omitted spouse an intestate share: (1) if it
appears from the will that the omission of the surviving
spouse was intentional or (2) if the testator provided for the
surviving spouse with transfers outside the will with the
intent that those transfers were in lieu of a provision in the
will. If either exception exists, the surviving spouse is not
entitled to a share as an omitted spouse.
Based on Hellums and its progeny, and the cases this
Court cited in Hellums, we discern the following regarding a
determination whether the testator provided for the surviving
spouse outside the will: (1) inter vivos transfers that have
26
1130486
been held to be "transfers" in lieu of testamentary provisions
include joint-tenancy checking and savings accounts and
assignments of retirement or insurance benefits; (2) the size
of the inter vivos transfer or a transfer that passes outside
the estate in relation to the intestate share may be a
relevant comparison, but there is no requirement that the
inter vivos or extra-estate gift be approximately the same as
the intestate share in order to qualify as a transfer in lieu
of a testamentary provision; (3) a valid prenuptial agreement
is a "transfer" outside the will and constitutes sufficient
proof of intent that that transfer is in lieu of a
testamentary provision; (4) statements made by the testator
concerning transfers outside the will may be relevant to show
the testator's intent that the transfers be in lieu of a
testamentary provision; (5) statements made by the testator
concerning the old will in relation to the new marriage may be
relevant to show that the testator reexamined the will and did
not change the will; (6)the separate estate of the surviving
spouse may be relevant; (7) the duration of the marriage may
be relevant; and (8) the beneficiaries under the will may be
relevant.
27
1130486
Because § 43-8-90 is designed to give effect to the
probable intent of the testator and to protect the surviving
spouse, the above-listed relevant considerations or factors
are not exclusive. Other factors may also be considered. The
factors relevant in one case may not be relevant in another.
These factors are not a mechanical checklist to reasonably
prove the testator's intent that the transfer be in lieu of a
testamentary provision, because the circumstances and facts
vary from case to case in probate proceedings such as this.
With this in mind, we turn to the present case. It is
undisputed that the decedent executed his will in 2002 and
that he and Katina married in 2011. Nothing in the decedent's
will indicates that the omission of Katina from the will was
intentional; therefore, the first exception to the omitted-
spouse share is not applicable.1 Now, we must determine
whether the probate court correctly held that the second
exception was not met, i.e., that Tiger failed to reasonably
1
Section 43-8-90 is based on § 2-301 of the UPC. Since
the adoption of § 43-8-90, § 2-301 has been amended to provide
for the following exception to the omitted-spouse share: If
"it appears from the will or other evidence that the will was
made in contemplation of the testator's marriage to the
surviving spouse," then the surviving spouse is not entitled
to the omitted-spouse share. (Emphasis added.)
28
1130486
prove that the decedent provided for Katina outside the will
and that those transfers were in lieu of a testamentary
provision.
The decedent died in 2012, without changing his will.
The decedent had no children, his parents had predeceased him,
and he had no surviving siblings. Because § 43-8-90 provides
that an omitted-spouse share is what the omitted spouse would
have received if the decedent had had no will, then under the
intestate statute, § 43-8-41(1), Ala. Code 1975, Katina would
receive the decedent's entire estate. The beneficiaries under
the will are Crystal, Tiger, and Tim. It is undisputed that
the decedent had a "parent/child" relationship with his
stepchildren before Dorothy's death and that he remained
close to Crystal and Tiger after Dorothy's death. When
Dorothy predeceased the decedent, all of their assets were
held jointly with rights of survivorship. The decedent was
the beneficiary of Dorothy's retirement accounts.
Katina and the decedent had an affair during the
decedent's marriage to Dorothy. Katina refused to come to
Alabama unless she and the decedent married. Katina had no
separate estate; she was living paycheck to paycheck before
29
1130486
she married the decedent. Katina and the decedent were
married for less than a year before his death.
The decedent provided Katina with inter vivos transfers
and transfers outside the will, including checking accounts,
life insurance, and retirement benefits. Those transfers
amount to lump-sum payments totaling approximately $548,000
and a monthly stipend for the rest of her life in the amount
of $900 in pension benefits.2 Crystal, Tiger, and Tim all
received inter vivos transfers and transfers outside the will.
Crystal and Tiger each received approximately $319,000, and
Tim received $33,000. The trial court valued the decedent's
probate estate at $378,200 with $233,000 attributed to two
residences. The probate court valued the decedent's property
located on Baratara Drive at $152,500, although the house
actually sold for $77,000 after the decedent's death.
There was testimony that the decedent was considering
changing his will after his marriage to Katina. The decedent
told Katina and his best friend that he was considering
2
This amount differs from the amount shown by the probate
court ($532.37) because the probate court did not include the
health-insurance premium that is deducted from the pension
benefit.
30
1130486
leaving the property on Third Avenue to Tim to fulfil a
promise to Dorothy to provide a house for Tim. The decedent
was also considering leaving the property on Baratara Drive to
Katina in order for her to have a place to live because she
had moved to Alabama to marry the deceased. The decedent
could not decide what to do, and he did not change his will.
The decedent told Crystal and Katina that he was going to
provide for Katina. Although the probate court states that
"by all accounts " the decedent died unexpectedly, there was
testimony from Crystal that the decedent was sick and had been
hiding his illness. There was also testimony from the
decedent's best friend that the decedent was on oxygen the
last few months of his life.
The probate court focuses on the fact that the decedent
never stated that the transfers he made to Katina were in lieu
of changing his will. Although such testimony was present in
Wester, supra, and would have been helpful here, it is not the
only evidence relevant to show the testator's intent. Here,
the decedent, during his brief marriage to Katina, changed
beneficiaries on his retirement accounts and insurance
policies. He was considering changing his will, but did not
31
1130486
do so. In short, he considered his old will in relation to
his new marriage. He also substantially provided for Katina;
Katina acknowledges that, if she received the intestate share,
she would be receiving more than the decedent intended her to
have.
The probate court focuses on the fact that Tiger
presented no evidence of the precise dates when the decedent
changed the beneficiaries of his retirement accounts and life-
insurance policies. In In re Taggart's Estate, supra, the New
Mexico court noted that the intent of the decedent at the time
of the transfers controlled. In that case, there was an issue
as to whether the transfers to the wife were to provide her
with a convenient method for managing the couple's expenses or
whether the transfers were for the wife's benefit. The
decedent in Taggart made the transfers to his wife shortly
after their marriage, and there was testimony that the
decedent stated that he wanted to "protect" the wife. The
court stated that it was not material that the transfers were
later used by the wife for day-to-day expenses. The Taggart
court went on to discuss whether the transfers were in lieu of
a testamentary provision and considered the facts that the
32
1130486
marriage was brief, that the inter vivos transfers to the
widow represented 20 percent of the decedent's total estate,
that the widow was also receiving monthly retirement benefits
as a result of the marriage, and that there was testimony that
the decedent had wanted to provide for his former mother-in-
law, who was the beneficiary under the will. The court held
that the transfers were in lieu of a testamentary provision.
Although the precise timing of a transfer and the type of
transfer may be relevant in some cases to show the intent of
the decedent at the time a transfer is made as to whether it
was a "transfer" under the omitted-spouse statute or whether
it was for some other purpose, it is undisputed in the present
case that the transfers were transfers outside the will under
§ 43-8-90. The issue in this case was whether those transfers
were in lieu of a testamentary provision. Also, no one
disputes that the decedent changed the beneficiaries to his
retirement and insurance policies during his brief marriage to
Katina.
In the present case, the amount of the transfers made
during the marriage, along with the testimony that the
decedent considered the terms of his will, the fact that
33
1130486
Katina was not included in the will, the fact that the
decedent did not change his will, and the fact that the will
ultimately benefited Dorothy's children provide reasonable
proof to satisfy Tiger's burden of proving an exception to the
omitted-spouse share under the facts of this case. We are
cognizant of our standard of review, given that the probate
court heard ore tenus evidence. However, it was the main role
of the probate court in this case to apply the law to the
largely undisputed material facts. We also are aware that
this is the first time this Court has set out any guidelines
for determining whether a transfer outside a will was in lieu
of a testamentary provision, and we applaud the probate court
for its well-written order.
Based on the foregoing, the judgment of the probate court
is reversed, and the cause is remanded for proceedings
consistent with this opinion.
REVERSED AND REMANDED.
Moore, C.J., and Murdock, Main, and Bryan, JJ., concur.
34