464 N.W.2d 393 (S.D. 1990), 16977, Matter of Estate of Donahue

Docket Nº:16977.
Citation:464 N.W.2d 393
Opinion Judge:The opinion of the court was delivered by: Anderson
Party Name:In the Matter of the ESTATE OF Robert E. DONAHUE, Deceased.
Attorney:Thomas E. Brady of Richards, Hood & Brady, Spearfish, South Dakota, Attorney for appellees.
Case Date:December 19, 1990
Court:Supreme Court of South Dakota

Page 393

464 N.W.2d 393 (S.D. 1990)

In the Matter of the ESTATE OF Robert E. DONAHUE, Deceased.

No. 16977.

Supreme Court of South Dakota.

December 19, 1990

Considered on Briefs May 23, 1990.

Thomas E. Brady of Richards, Hood & Brady, Spearfish, for appellees.

Robert W. Gunderson of Gunderson, Farrar, Aldrich & DeMersseman, Doyle D. Estes, Rapid City, for appellant.

ANDERSON, Circuit Judge.

Appellant Jean Donahue (wife) is the surviving widow of Robert E. Donahue (decedent). Wife appeals from the final decree of distribution of decedent's estate arguing that certain federal veterans benefits should not have been included in the augmented estate. We affirm the trial court on all issues.


Decedent died testate on April 14, 1987. He is survived by wife and appellees, three children from a previous marriage and three grandchildren. Wife claimed an elective share in decedent's estate as provided by SDCL 30-5A because decedent gave the bulk of his estate to his children and grandchildren during the two years before his death.

Wife moved to South Dakota in 1978 to live with decedent. Her assets consisted of $778.05 cash in three bank accounts in Effingham, Illinois; Series E bonds that were cashed in for $380.00 after their marriage; a house that sold in April 1979 netting $16,492.84; a car, household goods, furniture and appliances. Wife paid nearly $4,000.00 in health insurance premiums during 1979, 1980 and 1981. In the fall of 1981, wife underwent two major surgeries. Medical insurance did not cover her medical expenses for these surgeries. Wife paid the medical bills totalling nearly $4,000.00 out of her personal funds. This depleted most of her assets. Shortly after these surgeries wife and decedent married. This marriage brought wife under decedent's health insurance coverage.

Due to decedent's alcoholism, manifested by binge drinking, and both parties' health problems, the relationship was stormy. Regardless, they traveled extensively, including two trips to Ireland, several trips a

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year to Seattle and winters in Florida, Texas or Mexico. They attempted to keep their finances separate, paying their own expenses and maintaining separate bank accounts. Neither party worked during the marriage and at no time did wife earn any income. They lived off decedent's income exclusively.

Decedent's disposable cash income from 1981 through 1987, inclusive, from work, social security, pension, IRA income and other assets totalled $128,759.94. Further, decedent's sister died in 1984 and he inherited the net sum of $74,476.58. Decedent contributed more than $203,000.00 in cash assets to the marriage in addition to other assets such as health care and PX benefits.

In 1985 decedent was diagnosed with lung cancer. After this diagnosis, he began to dispose of his personal assets and property through gifts to his children and grandchildren. The trial court determined that the total net value of these gifts, after exemptions provided by law, was $114,829.00.

Decedent's will listed specific...

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