Beaman's Estate, Matter of

• Decision Date: 01 August 1978
• Docket Number: No. 1,CA-CIV,1
• Citation: 583 P.2d 270,119 Ariz. 614
• Parties: In the Matter of the ESTATE of Leo Clyde BEAMAN, Deceased. Alma BEAMAN, Appellant, v. Leo Leslie BEAMAN, Personal Representative of the Estate of Leo Clyde Beaman, Deceased, Appellee. 3818.
• Court: Arizona Court of Appeals

Page 270

583 P.2d 270

119 Ariz. 614

In the Matter of the ESTATE of Leo Clyde BEAMAN, Deceased.

Alma BEAMAN, Appellant, v. Leo Leslie BEAMAN, Personal Representative of the Estate of Leo Clyde Beaman, Deceased, Appellee.

No. 1 CA-CIV 3818.

Court of Appeals of Arizona, Division 1,

Department B.

Aug. 1, 1978.

Filler, Paytas, Shannon & Fleming, P. C. by Charles A. Filler, Scottsdale, for appellant

Law Offices of Jack C. Warner by Harry E. Cawood, Phoenix, for appellee.

OPINION

EUBANK, Presiding Judge.

The primary question raised by this appeal is whether A.R.S. § 14-2204 (Uniform Probate Code § 2-204), Infra, requires that a waiver of rights by a surviving spouse in a decedent spouse's estate be reduced to writing and signed by the surviving spouse before it is effective. The trial court was of the opinion that the statute did not require a writing and denied appellant's petition to establish her rights as surviving spouse under her decedent husband's will, and for an allowance in lieu of homestead, for exempt property and for a family allowance.

The trial court, following a hearing, denied appellant relief. The court based its decision on evidence of an oral agreement between the deceased and the appellant indicating a property settlement, and evidence of an oral waiver by appellant of her rights in her deceased husband's estate. Appellant appealed from the January 11, 1977 order denying her relief. We disagree with the trial court, as a matter of law, and reverse the order.

The appellant and Leo Clyde Beaman, the deceased, were married on October 23, 1973, at Marion, Illinois. The deceased had two grown children, a son and daughter, by a prior marriage. On May 9, 1973, five months before his marriage to appellant, the decedent executed his will leaving all of his estate to his son and daughter, share and share alike, and appointing his son, Leo L. Beaman, executor of his estate. By the time he died on July 8, 1976, decedent had not changed the provisions of his will, and was still married to the appellant. The will, of course, did not mention or provide for the appellant.

On November 12, 1976, appellant filed her petition to establish her rights under her deceased husband's will. In response, the executor raised defenses of intentional exclusion, renunciation, property settlement and waiver of rights. Following a hearing on January 5, 1977, the trial judge found in favor of respondent-appellee, as follows:

1. Petitioner, Alma Beaman, left for Illinois on or about May 8, 1976, never intending to return to her husband, Leo Clyde Beaman, because of marital difficulties.

2. When Petitioner left the state, she took cash, an automobile and other personal property. And, at this time, the deceased was in the hospital.

3. Leo Leslie Beaman, Personal Representative and son of Leo Clyde Beaman by a prior marriage, testified that the day before petitioner left for Illinois she stated to him: "She said again that she was taking her things and that she was leaving the mobile home and the mobile home lot and his personal effects and she says this belongs to you kids. She says I am leaving I am not coming back. You take it it is rightfully yours."

4. Petitioner left behind at the couple's residence only such property as she felt belonged to her husband or items she didn't want and that in so doing she intended a complete property settlement with her husband.

5. The refusal by Leo Clyde Beaman to sign the papers to transfer the title to the automobile to the Petitioner did not prevent a complete property settlement. It was communicated to petitioner that she could accomplish the transfer without his signature and, in fact, she did such.

The Court therefore finds that the provisions of A.R.S. § 14-2204 are met, specifically,

A. There was a complete property settlement; and

B. The settlement was in anticipation of divorce or dissolution of the marriage.

The Court further finds that consequently the petitioner had waived her rights to allowance in lieu of homestead, exempt property and family allowance in the property of Leo Clyde Beaman, deceased, and had renounced all benefits which might pass to her from his estate.

IT IS THEREFORE ORDERED that the petition be denied.

Respondent-appellee contends that A.R.S. § 14-2204 (U.P.C. § 2-204) "clearly indicates that a waiver may be effected either through a written contract Or a complete property settlement entered into after or in anticipation of legal separation, divorce or dissolution of marriage." He further contends that "(T)he acceptance and taking by Appellant of a substantial amount of property held in the joint names of Appellant and decedent on or about May 8, 1976, was such a complete property settlement in anticipation of legal separation, divorce or dissolution of marriage." ¹ No authority, other than A.R.S. § 14-2204 (U.P.C. § 2-204), is cited to support this proposition of settlement.

A.R.S. § 14-2204 (U.P.C. § 2-204) reads:

The rights of a surviving spouse under this title may be waived, wholly or partially, before or after marriage, by a written contract, agreement or waiver signed by the party after a fair disclosure. Unless the contract provides to the contrary, a waiver of all rights in the property or estate of a present or prospective spouse, or a Complete property settlement entered into after or in anticipation of legal separation, divorce or dissolution of marriage is a waiver of all rights to an allowance in lieu of homestead, exempt property and family allowance by each spouse in the property of the other and a renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver Or property settlement. A waiver of all rights does not affect the rights of each spouse to his share of community property, in the absence of contrary provision; but a complete settlement terminates rights to community property in assets then owned or thereafter acquired, unless the settlement agreement provides to the contrary. (Emphasis by appellee)

The portion of the statute underlined for emphasis is the basis of appellee's contention. We disagree with appellee's contention.

The fundamental rule in statutory interpretation is to ascertain and give effect to the intention of the legislature. Phoenix Title & Trust Co. v. Burns, 96 Ariz. 332, 395 P.2d 532 (1964). The clear import of the words used in A.R.S. § 14-2204 requires "a written contract, agreement or waiver signed by the party after a fair disclosure." The statutory clauses emphasized by appellee must be read together with the rest of the statute. When this is done, the emphasized parts merely describe aspects of the required written contract, agreement or waiver. In addition, other statutes in Pari materia with A.R.S. § 14- 2204 require a writing, such as A.R.S. § 14-2110 (Advancements), § 14-2502 (Wills), § 14-2801 (Renunciation), § 25-317 (Separation or Property Agreement), and in certain cases A.R.S. § 44-101 (Statute of Frauds). Thus, the legislature has been consistent in requiring a writing in the same and related areas of the law. See Professor Richard W. Effland's Arizona Probate Code Practice Manual (Ariz. State Bar Ass'n 1973) (ch. 4 p. 4-2).

We hold that A.R.S. § 14-2204 (U.P.C. § 2-204) requires a surviving spouse to execute a written waiver of rights in the estate of the deceased spouse or a signed property agreement in order to effectively waive rights under the statute and the deceased spouse's will. Since appellant did not execute such a writing, A.R.S. § 14-2204 (U.P.C. § 2-204) has no application to her rights in the estate.

Appellant correctly advocated at the trial court and in this Court that A.R.S. § 14-2301 (U.P.C. § 2-301), which specifically deals with a spouse omitted from a will, was the applicable statute to the facts involved here. We agree. The statute reads as follows:

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 is shown by statements of the testator or from the amount of the transfer or other evidence.

B. In satisfying a share provided by this section, the devises made by the will abate as provided in § 14-3902. (Id.)

This section treats the omitted spouse in the same manner as the pretermitted child, A.R.S. § 14-2302 (U.P.C. § 2-302), and grants the omitted spouse an intestate share in the deceased spouse's estate. The purpose of this approach is to preserve the remainder of the will while still providing for the omitted spouse. See D. H. O'Connell & R. W. Effland, Intestate Succession and Wills: A Comparative Analysis of the Law of Arizona and the Uniform Probate Code, 14 Ariz.L.Rev. 205, 235 (1972). See also John T. Gaubatz, Notes Toward A Truly Modern Wills Act, 31 U.Miami L.Rev. 497, 551-54 (1977). Both A.R.S. § 14-2301 (U.P.C. § 2-301) and § 14-2302 (U.P.C. § 2-302) differ from A.R.S. § 14-2204 (U.P.C. § 2-204), Supra, in that extrinsic evidence is admissible to show that a transfer of property outside the will by the testator to the omitted spouse or pretermitted child was intended to be a transfer in lieu of a testamentary provision. ² A good example of the nature of this evidence is offered by Professors O'Connell and Effland as follows:

. . . (S)uppose the testator executes a will providing for his children, later marries a second wife, and takes out a large life insurance policy payable to her, stating orally that this is to provide for her because his will makes no such provision. Evidence as to the statement would be admissible to preclude the second...