Mongold v. Mayle, 22379

• Decision Date: 08 December 1994
• Docket Number: No. 22379,22379
• Citation: 452 S.E.2d 444,192 W.Va. 353
• Court: West Virginia Supreme Court
• Parties: Brenda J. MONGOLD and Linda L. Mullenax, Plaintiffs Below, Appellees, v. Eulda K. MAYLE, Defendant Below, Appellant.

Page 444

452 S.E.2d 444

192 W.Va. 353

Brenda J. MONGOLD and Linda L. Mullenax, Plaintiffs Below, Appellees, v. Eulda K. MAYLE, Defendant Below, Appellant.

No. 22379.

Supreme Court of Appeals of West Virginia.

Submitted Nov. 1, 1994.

Decided Dec. 8, 1994.

Syllabus by the Court

1. Even though a testator executed a premarital will, as provided by W.Va.Code, 42-3-7 [1992], a surviving spouse of that testator is not precluded from taking an elective share of the decedent spouse's estate pursuant to W.Va.Code, 42-3-1 [1992].

2. "A declaratory judgment action is a proper procedure for an adjudication of the legal rights and duties of parties to an actual, existing controversy which involves the construction or application of a statute or of statutes." Syl. pt. 1, Arthur v. County Court of Cabell County, 153 W.Va. 60, 167 S.E.2d 558 (1969).

John G. Ours, Petersburg, for appellant.

James Paul Geary, Geary & Geary, Petersburg, for appellees.

McHUGH, Justice:

The appellant, Eulda K. Mayle, appeals an order of the Circuit Court of Grant County, which held, in a declaratory judgment action, that W.Va.Code, 42-3-7 [1992], which concerns premarital wills, precludes the application of W.Va.Code, 42-3-1 [1992], which concerns a surviving spouse's right to an elective share. The appellees are Brenda J. Mongold and Linda L. Mullenax. For reasons set forth below, we reverse the order of the circuit court.

I.

Jesse Mayle, a resident of Grant County, had two children from his first marriage. On June 22, 1981, after divorcing his first wife, Jesse Mayle prepared a will in which he left his entire estate to his two children from his first marriage: the appellees.

On October 28, 1983, approximately two years after he prepared the will, Jesse Mayle married Eulda K. Mayle, the appellant. There were no children born of that marriage. On March 1, 1993, Jesse Mayle died. He was survived by his wife, the appellant, and his two daughters, the appellees. On May 24, 1993, pursuant to W.Va.Code, 42-3-4 [1992], the appellant filed a petition with the County Commission of Grant County seeking her elective share pursuant to W.Va.Code, 42-3-1 [1992].

The appellees filed a declaratory judgment action in the Circuit Court of Grant County to determine whether or not the appellant was entitled to an elective share of her husband's estate in view of the premarital will. Eventually, the parties submitted facts upon which they agreed, including the fact that the total probate estate will probably be less than $50,000.

The circuit court found that the appellant was not entitled to an elective share of her decedent spouse's estate pursuant to W.Va.Code, 42-3-1 [1992] since W.Va.Code, 42-3-7 [1992], regarding premarital wills, was controlling. The order effectively precluded the appellant from taking anything from her husband's estate.

II.

Initially, we note that in the case before us, W.Va.Code, 42-3-1, et seq., the pertinent statutes which control the distribution of the decedent's estate to the surviving spouse, were modeled upon the Revised Uniform Probate Code (1990). ¹ West Virginia was the first state to enact the intestacy and elective-share provisions of the Revised Uniform Probate Code. Patricia J. Roberts, The 1990 Uniform Probate Code's Elective-Share Provisions--West Virginia's Enactment Paves the Way, 95 W.Va.L.Rev. 55, 57 (1992). Because these statutes were enacted so recently, this Court has not had an opportunity to interpret or apply W.Va.Code, 42-3-1, et seq. Therefore, references to portions of the Revised Uniform Probate Code are important in order to facilitate an understanding of the statutes at issue in the case before us. An examination of the reasons for the enactment of W.Va.Code, 42-3-1 [1992] and W.Va.Code, 42-3-7 [1992] is important.

A. W.Va.Code, 42-3-1 [1992]:

The Elective-Share Provision

W.Va.Code, 42-3-1(a) [1992] ² states, in relevant part:

The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this part, to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other[.]

W.Va.Code, 42-3-1 [1992] sets forth the amount a surviving spouse may elect to take from the augmented estate. ³

The purpose behind an elective-share statute is to prevent disinheritance of the spouse. See generally John W. Fisher II & Scott A. Curnutte, Reforming the Law of Intestate Succession and Elective Shares: New Solutions to Age-Old Problems, 93 W.Va.L.Rev. 61, 98-115 (1990). As Professor Fisher has noted "[t]he protection of a decedent's wife from disinheritance began as early as the Code of Hammurabi, and can be traced through Roman, Germanic, Scandinavian and Saxon law." Id. at 101 (footnote omitted).

The purpose of the Revised Uniform Probate Code elective-share provision is to deal with the problem of spousal disinheritance in modern times. In fact, the elective-share provision of the Revised Uniform Probate Code specifically was written in order "to bring elective-share law into line with the contemporary view of marriage as an economic partnership." Revised Article II of the Uniform Probate Code, 8 U.L.A. 90 at general comment (Supp.1994).

The elective-share system, set forth in the Revised Uniform Probate Code, is based upon two rationales: (1) contribution--which recognizes that no matter what role a spouse plays in marriage, he or she has made some contribution towards the acquisition of property of the deceased spouse and (2) support--which recognizes that the surviving spouse will need support after the death of his or her spouse. Roberts, supra at 57-58. Therefore, the purpose behind the elective-share provision set forth in W.Va.Code, 42-3-1 [1992] is to prevent spousal disinheritance in order to ensure that the surviving spouse's contribution to the acquisition of property during the marriage is recognized and in order to ensure that the surviving spouse has continuing financial support after the death of his or her spouse. This purpose is obviously different than the purpose of the premarital will provision.

B. W.Va.Code, 42-3-7 [1992]:

The Premarital Will Provision

When there is a premarital will, W.Va.Code, 42-3-7 [1992] outlines what a surviving spouse is entitled to take from the decedent spouse's estate. W.Va.Code, 42-3-7(a) [1992], states, in relevant part:

If a testator's surviving spouse married the testator after the testator executed his or her will, the surviving spouse is entitled to receive, as an intestate share no less than the value of the share of the estate he or she would have received if the testator had died intestate as to that portion of the testator's estate, if any, that neither is devised to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse nor is devised or passes to a descendant of such a child[.] ⁴

(footnote added). W.Va.Code, 42-3-7 [1992] explains that the portions of the estate which are devised to or which are passed to certain children or their descendants are excluded when the intestate share is calculated. Furthermore, W.Va.Code, 42-3-7 [1992] lists certain conditions which bar the surviving spouse from receiving an intestate share when there is a premarital will.

W.Va.Code, 42-3-7 [1992] takes into consideration the possibility that the decedent spouse may have forgotten about the pre-existing will when marrying the surviving spouse, and if the decedent spouse had remembered the will, he would have included the surviving spouse in the will. As the writers of the Revised Uniform Probate Code note in the comment to the premarital will section (§ 2-301 of the Revised Uniform Probate Code), "[t]his section reflects the view that the intestate share of the spouse in that portion of the testator's estate not devised to certain of the testator's children ... is what the testator would want the spouse to have if he or she had thought about the relationship of his or her old will to the new situation." Revised Article II of the Uniform Probate Code § 2-301, 8 U.L.A. 120 (Supp.1994). Importantly, the writers of the Revised Uniform Probate Code stress that the premarital will section applies automatically and need not be elected. Id.

C. The relationship between W.Va.Code, 42-3-1 [1992]

and W.Va.Code, 42-3-7 [1992]

With this background in mind, the first issue is whether the circuit court erred in determining that when the testator executes a premarital will as provided by W.Va.Code, 42-3-7 [1992], the surviving spouse of that testator is precluded from taking an elective share of the decedent spouse's estate pursuant to W.Va.Code, 42-3-1 [1992].

It is clear from the above discussion that the purposes underlying W.Va.Code, 42-3-1 [1992] and W.Va.Code, 42-3-7 [1992] are different: W.Va.Code, 42-3-1 [1992] protects a surviving spouse from disinheritance and W.Va.Code, 42-3-7 [1992] gives a surviving spouse an intestate share in the amount the decedent spouse would have given the surviving spouse had he or she thought about the effect of the premarital will. Common sense dictates that the intestate share provided for under W.Va.Code, 42-3-7 [1992] does not preclude a surviving spouse from taking an elective share pursuant to W.Va.Code, 42-3-1 [1992]. To hold otherwise would allow a spouse to disinherit his or her spouse, thereby defeating the purpose behind the elective-share theory of the Revised Uniform Probate Code. ⁵

Moreover, the West Virginia legislature added language to W.Va.Code, 42-3-1 after it was enacted in 1992 which clarifies the fact that the intestate share is not preclusive of the elective share: "The surviving spouse of a decedent who dies domiciled in this state has a right of election, against either the will or the intestate share, under the limitations and...