Estate of Burmeister, Matter of

• Decision Date: 12 July 1993
• Docket Number: No. 30937-4-I,30937-4-I
• Citation: 70 Wn.App. 532,854 P.2d 653
• Parties: In the Matter of the ESTATE OF Kenneth Lee BURMEISTER, Deceased. Jeanne BURMEISTER, Respondent, v. Leanne J. GRIFFITH, as Personal Representative of the Estate of Kenneth L. Burmeister, deceased; Leanne J. Griffith, Individually; Heidi L. Payseno; Tamara J. Benz; and Kim D. Pratt, Appellants. Division 1
• Court: Washington Court of Appeals

Page 532

70 Wn.App. 532

854 P.2d 653

In the Matter of the ESTATE OF Kenneth Lee BURMEISTER, Deceased.

Jeanne BURMEISTER, Respondent, v. Leanne J. GRIFFITH, as Personal Representative of the Estate

of Kenneth L. Burmeister, deceased; Leanne J.

Griffith, Individually; Heidi L.

Payseno; Tamara J. Benz; and

Kim D. Pratt, Appellants.

No. 30937-4-I.

Court of Appeals of Washington,

Division 1.

July 12, 1993.

Thomas D. Adams, Everett, for appellants

James U. Bittner, Kasperson & Bittner, P.S., Seattle, for respondent.

FORREST, Judge.

Leanne J. Griffith, Heidi L. Payseno, Tamara J. Benz, and Kim D. Pratt, as the surviving daughters and beneficiaries of Kenneth Lee Burmeister, and Leanne J. Griffith, as Personal Representative of the Estate of Kenneth Lee Burmeister (hereafter collectively referred to as "Griffith"), appeal the order (1) revoking Kenneth's will as to Jeanne Burmeister, Kenneth's second wife, (2) ordering that she take the intestate share of the estate to which a surviving spouse is entitled, (3) awarding Jeanne $38,759.17 in attorney fees and $776.00 in costs against the estate, and (4) awarding Griffith attorney fees against the estate. Griffith contends the will was improperly revoked based on the trial court's erroneous conclusion

                that the prenuptial agreement entered into between Kenneth and Jeanne did not make provision for Jeanne.   Jeanne appeals the court's award of attorney fees to her and claims that she should have been awarded all the fees she requested and that the award should have been against the daughters personally.   Jeanne also claims the award of attorney fees to Griffith against the estate was error.   Finding no error, we affirm
                

STATEMENT OF FACTS

Kenneth and Janet Burmeister executed reciprocal wills in 1977. Janet died in 1988, leaving Kenneth and four daughters as survivors. The four daughters became beneficiaries under Kenneth's will and are presently adults.

Kenneth and Jeanne Mliner Burmeister were married on May 11, 1990. At Kenneth's urging, shortly before her marriage, Jeanne left her job as a flight attendant with Northwest Airlines, a job she had held for 24 years. The day before their marriage, Kenneth and Jeanne executed a prenuptial agreement in which they agreed that the property owned by each party at the time of the marriage would remain each party's sole and separate property throughout the marriage and that each party would have the right to dispose of their own separate property as if they were unmarried. ¹ The agreement also addressed each party's respective rights upon the other's death. Relevant portions are excerpted below. In an amendment to the agreement, executed the same day as the agreement, the parties acknowledged that Jeanne terminated her tenured employment and that, in the event of a dissolution, her ability to regain employment at a comparable level might be severely limited. In consideration of Jeanne's entering into the marriage and her execution of the prenuptial agreement, Kenneth agreed that in the event of a dissolution, he would compensate Jeanne, subject to his ability to pay and her need for maintenance, "a sum sufficient to sustain and support her at a level enjoyed by her immediately prior to the marriage."

Kenneth died 5 months later and Leanne Griffith, his eldest daughter, was appointed executrix. Kenneth's daughters forced Jeanne to leave Kenneth's residence and she was unable to resume her prior position with Northwest Airlines. At the time of trial, she held three part-time jobs.

Jeanne filed a Petition for Award in Lieu of Homestead, Petition for Family Allowance, Petition to Declare Prenuptial Agreement Invalid, and a Complaint to Enforce Contract to Execute a Will. The court found that the prenuptial agreement was valid and binding, ordered Kenneth's will revoked as to Jeanne, and ordered that Jeanne take the intestate share of his estate to which a surviving spouse is entitled. The court dismissed Jeanne's claim that she was a creditor of the estate based on promissory estoppel, and held that she waived and was not allowed either an award in lieu of homestead or a family allowance. ² The court awarded Jeanne $38,759.17 in attorney fees and $776.00 in costs against the estate, and awarded Griffith $21,211.00 in attorney fees against the estate. Both parties appeal.

REVOCATION OF THE WILL

The relevant statute provides:

If, after making any will, the testator shall marry and the spouse shall be living at the time of the death of the testator, such will shall be deemed revoked as to such spouse, unless provision shall have been made for such survivor by marriage settlement, or unless such survivor be provided for in the will or in such way mentioned therein as to show an intention not to make such provision, and no other evidence to rebut the presumption of revocation shall be received. A divorce, subsequent to the making of a will, shall revoke the will as to the divorced spouse.

RCW 11.12.050.

Griffith contends the statutory presumption of revocation does not apply because the prenuptial agreement between Kenneth and Jeanne made a "provision" for Jeanne in the There is no dispute that Kenneth's 1977 will did not make a provision for Jeanne or mention Jeanne in such a way as to show an intention not to make such provision.

event of Kenneth's death, which provision was not to give Jeanne anything in the event of his death.

A valid prenuptial agreement can be a marriage settlement for purposes of RCW 11.12.050. ³ Jeanne does not contest the validity of the prenuptial agreement under Friedlander v. Friedlander. ⁴ So, since the statute precludes any other evidence, the issue is whether, on the basis of the terms of the settlement agreement alone, ⁵ a "provision" was made for Jeanne in the event of Kenneth's death. Clearly, the prenuptial agreement made no beneficial provision for Jeanne in such event; indeed it took away statutory rights. ⁶

                Griffith argues nonetheless that the phrase "unless provision shall have been made for such survivor by marriage settlement" is satisfied by a term in the settlement that explicitly evidences an intent not to make any beneficial provision.   This is not persuasive.   In the portion of the statute dealing with a will, 7 "provision" clearly means beneficial provision, because it says the testator must show an intent not to make a "provision".   In short, the statutory language strongly suggests different requirements for disinheritance by settlement than by will
                

More cogently, Griffith argues that the plain purpose of the statute is to prevent unintentional disinheritance of a new spouse by failure to make a new will. ⁸ Since the statute permits such disinheritance so long as it is clearly manifested, she argues that a prenuptial agreement clearly manifesting such intent, such as this agreement, should satisfy the statutory requirement.

This argument was rejected in Koontz v. Koontz, ⁹ which we find dispositive. In Koontz, the decedent, a widower, married a widow almost 2 years after making a will in which he left all his property to his sons. The will made no provision [p]roof of a settlement such as that here advanced denying her any provision from his own property even as his heir, would not be sufficient [to toll revocation] since such a settlement would make no provision for her, but quite the contrary. It would take away that provision which, but for the agreement, the law would give her.

                for or mention of his new wife.   After the decedent's death, the sons sought to show, through oral evidence, that the decedent and his wife had reached an express understanding prior to their marriage that when either should die, the survivor would have no interest in the other's estate.   The court stated that, even assuming the validity of the oral agreement
                

Koontz v. Koontz, 83 Wash. 180, 183, 145 P. 201 (1915). The court concluded "that if, as we have held, the statute means what it says, the settlement here claimed, even if established by competent evidence, made no provision for the surviving wife, hence did not toll the revocation." Koontz, 83 Wash. at 183, 145 P. 201.

Although following Koontz frustrates Kenneth's intent as manifested in the prenuptial agreement, Kenneth could have unequivocally achieved his goal by following the dictates of RCW 11.12.050 and disinheriting Jeanne in his will. Further, applying Koontz avoids an unfair result as to Jeanne, who gave up a good job in order to marry Kenneth and was left with neither income nor home upon Kenneth's death. Moreover, since Kenneth recognized an obligation to provide for Jeanne in the event of a divorce, that is, upon failure of the marriage, it seems inconsistent that he would not provide some income or property to Jeanne in the event of his death while the marriage was presumptively still successful. The statute has been in effect in the same or substantially similar form since 1860. Koontz is the only case addressing the issue presented here. Only 15 cases have mentioned the statute in the context of revocation of a will upon subsequent marriage and none of these cases found any confusion or ambiguity in the statute. The absence of

                appellate cases on this issue coupled with legislative inaction suggests that the Koontz construction of the statute fulfills the statute's purpose and is not confusing to spouses involved in second marriages with an earlier will.   The trial court did not err in holding Kenneth's prior will revoked as to Jeanne and directing that she take the surviving spouse's intestate share
                

ATTORNEY FEES

The court awarded attorney fees pursuant to RCW 11.96.140, which provides...