Estate of Determan, Matter of
| Decision Date | 30 November 1990 |
| Docket Number | No. 17127,17127 |
| Citation | 472 N.W.2d 239 |
| Parties | In the Matter of the ESTATE OF Robert L. DETERMAN, Deceased. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Kennith L. Gosch of Bantz, Gosch, Cremer, Peterson & Oliver Aberdeen, for appellee.
Richard A. Glynn of Holland, Brantseg & Glynn, Sisseton, for appellee Ruth Determan.
Richard Kolker of Maloney, Kolker, Fritz, Hogan & Johnson, Groton, for appellants.
Lorene S. Determan (Lorene) appeals a circuit court order dismissing her petition for an elective share of the estate of Robert Determan (Robert). We affirm.
Lorene and Robert were married in 1964. Although the two did not live together for at least ten years before Robert's death, they were never divorced. Robert died intestate on September 25, 1983. At that time, SDCL 30-5A-6 gave a surviving spouse two months from the first publication of notice to creditors to file a petition for an elective share of the decedent's estate. 1 In this instance, however, no first publication of notice to creditors took place within the years immediately following Robert's death nor did Lorene file an elective share petition during that time.
On July 1, 1987, an amendment to SDCL 30-5A-6 took effect. The amendment allows a surviving spouse six months from the death of the decedent rather than two months from first publication of notice to creditors to file an elective share petition. 2 As is obvious, that six month period expired in this case approximately three and a half years before the effective date of the amendment.
On November 2, 1988, Lorene filed a petition for letters of administration for Robert's estate. On November 9, 1988, first publication of notice to creditors took place. On January 9, 1989, over five years after Robert's death, Lorene filed her elective share petition. On March 8, 1990, the circuit court dismissed the petition because it was not filed within six months of Robert's death as required by SDCL 30-5A-6 as amended in 1987.
The following chronology summarizes these events:
Date Event
September Robert dies. SDCL 30 "5A 6 gives Lorene two months from first
25, 1983 publication of notice to creditors to file an elective share
petition
March 25, Six months pass since Robert's death. Lorene's right to petition
1984 for elective share expires under 1987 amendment to SDCL 30
"5A"6
July 1, Amendment of SDCL 30 "5A"6 takes effect. Lorene now has six months
1987 from date of Robert's death to file an elective share petition
November 2, Lorene files petition for letters of administration for Robert's
1988 estate.
November 9, First publication of notice to creditors takes place.
1988
January 9, Lorene files an elective share petition. Timely under SDCL 30
1989 "5A"6 before 1987 amendment. Untimely under SDCL 30"5A"6 as
amended in 1987.
ISSUE
The circuit court applied our holding in Matter of Estate of Clyde, 423 N.W.2d 513 (S.D.1988) in ruling Lorene's petition for an elective share was untimely. In Clyde, we held that, "no right to petition for an elective share of the augmented estate of the deceased spouse vests until the first notice to creditors is published." Id. at 515. Here, first publication of notice to creditors did not occur until November 9, 1988. At that time, SDCL 30-5A-6 gave the surviving spouse six months from the death of the decedent to file an elective share petition. Lorene's six months expired on March 25, 1984, almost five years before she filed her petition. Based upon these facts and the rule of Clyde, the circuit court concluded that Lorene's petition was untimely and dismissed it.
Lorene argues that her right to claim an elective share vested on the date of Robert's death rather than on the date of first publication of notice to creditors. Therefore, she contends that the procedures for claiming an elective share in effect on the date of Robert's death are applicable. Under these procedures, Lorene would have two months from the first publication of notice to creditors to file her elective share petition. SDCL 30-5A-6 (Supp.1983). Since first publication occurred on November 9, 1988, and Lorene filed her petition on January 9, 1989, exactly two months later, she asserts that the petition was timely filed and was erroneously dismissed. We disagree.
Our decision in Clyde was based on the language of SDCL 30-5A-6 prior to its amendment in 1987. In reaching our holding that no right to claim an elective share vests until first publication of notice to creditors, we explicitly referred to the pre-1987 language of SDCL 30-5A-6 providing that the election could be made by filing a petition, "within two months after the first publication of notice to creditors for filing claims." Clyde, 423 N.W.2d at 515 (quoting, SDCL 30-5A-6). That language, however, was amended out of the statute in 1987 and replaced with the language giving the surviving spouse six months from the death of the decedent to file an elective share petition. Even more significantly, language was also added to the statute providing that, "[u]pon filing of the petition for election the right to such election is vested and may not be terminated by any death or any subsequent event." 1987 S.D.Sess.L. ch. 207, § 4 (emphasis added). Reference to this amendment makes clear that after July 1, 1987, no right to claim an elective share vests until the petition for the elective share is filed.
The above analysis means that from 1983, when Robert died, to July 1, 1987, when the amendments to SDCL 30-5A-6 took effect, Lorene's right to claim an elective share in Robert's estate never vested. This is because first publication of notice to creditors never took place during that time. Under Clyde and under the pre-1987 version of SDCL 30-5A-6, that had to occur before Lorene's right to claim an elective share could vest.
After July 1, 1987, Lorene's right to claim an elective share could not vest until she filed her elective share petition. Lorene filed her petition on January 9, 1989. However, under the procedures applicable at that time, the petition had to be filed within six months of the death of the decedent to be timely. SDCL 30-5A-6. Lorene's petition was not filed until well over five years after Robert's death and, therefore, was clearly untimely. It follows that the circuit court appropriately dismissed Lorene's petition. Matter of Estate of Lingscheit, 387 N.W.2d 738 (S.D.1986) ().
AMUNDSON, J., not having been a member of the Court at the time this action was submitted did not participate.
Lorene filed her petition for her elective share within the time allowed by the amendment of SDCL 30-5A-6, when applied prospectively.
The chronology set forth in the majority opinion shows vividly how unfair the result is. It states that on March 25, 1984, six months after Robert's death, "Lorene's right to petition for elective share expires"--under an amendment to SDCL 30-5A-6 that will not be enacted until 1987.
The chronology then states that on July 1, 1987, when the amendment to SDCL 30-5A-6 takes effect, "Lorene now has six months from date of Robert's death to file an elective share petition." At this point, Robert has been dead nearly four years.
Clearly something is wrong here. The source of the problem may be in the majority's misapplication of Estate of Clyde, 423 N.W.2d 513 (S.D.1988). In Clyde, we held that, under the pre-1987 version of SDCL 30-5A-6, the right of a surviving spouse to petition for elective share is triggered by notice to creditors, not by decedent's death. Note that there is no time limitation in SDCL 30-5A-6 or 30-21-13 restricting when this triggering notice to creditors must be published.
Therefore, at the time of Robert's death in 1983, Lorene could petition for letters of administration, causing notice to creditors to be published, at any time. SDCL 30-21-13, 30-6-8, 30-9-12. Upon this notice to creditors, Lorene's right to petition for elective share would vest and would expire two months thereafter.
The 1987 amendment to SDCL 30-5A-6 affected this right of surviving spouses to give notice to creditors and thereby be vested...
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