Estate of Zimmerman, Matter of

• Decision Date: 04 June 1998
• Docket Number: No. 970271,970271
• Citation: 1998 ND 116,579 N.W.2d 591
• Parties: In the Matter of the ESTATE OF Wallace W. ZIMMERMAN, deceased. Sarah L. ZIMMERMAN, Surviving Spouse of Wallace W. Zimmerman, and Maureen K. Zimmerman, Daughter and Residuary Devisee of Wallace W. Zimmerman, Petitioners and Appellants, v. Andrew C. ZIMMERMAN, Personal Representative of the Estate of Wallace W. Zimmerman, Deceased, Respondent and Appellee. Civil
• Court: North Dakota Supreme Court

Page 591

579 N.W.2d 591

1998 ND 116

In the Matter of the ESTATE OF Wallace W. ZIMMERMAN, deceased.

Sarah L. ZIMMERMAN, Surviving Spouse of Wallace W.

Zimmerman, and Maureen K. Zimmerman, Daughter and

Residuary Devisee of Wallace W.

Zimmerman, Petitioners and Appellants, v. Andrew C. ZIMMERMAN, Personal Representative of the Estate

of Wallace W. Zimmerman, Deceased, Respondent and Appellee.

Civil No. 970271.

Supreme Court of North Dakota.

June 4, 1998.

Steven E. McCullough (argued), of Ohnstad Twichell, West Fargo, for petitioners and appellants.

Edmund G. Vinje II (argued), of Vinje Law Office, Fargo, for respondent and appellee.

MESCHKE, Justice.

¶1 Sarah L. Zimmerman and Maureen K. Zimmerman appealed a probate court judgment and orders rejecting Sarah's attempt to claim an elective share in the augmented estate of her deceased spouse, Wallace W. Zimmerman. We conclude the trial court erred in ruling Sarah effectively waived her right to a statutory elective share, and erred in ordering Wallace's will unambiguously devised Sarah nothing. We reverse and remand for determination of Sarah's elective share of the augmented estate.

I

¶2 Wallace and Sarah were married on April 24, 1954. Three children were born of the marriage: Maureen, Karen, and Andrew. Through most of this marriage, Wallace and Sarah got along well together. But in 1980, Wallace became verbally abusive, and later physically abusive, to Sarah.

¶3 In early 1981, Sarah sued for legal separation from Wallace. Wallace counterclaimed for divorce, and in March 1982, the couple legally divorced. The divorce court valued the parties' marital assets at $767,366 and the marital debt at $53,000, leaving a net marital estate of $714,366. The court divided the property nearly equally, awarding Sarah the home and its furnishings, Wallace's interest in another house, and a vehicle. The court also ordered Wallace to pay Sarah $1,000 per month for 20 years as part of the property distribution, with the debt secured by a mortgage on Stutsman County farmland gifted to Wallace by his parents.

¶4 Wallace had served in the military but, under the law at the time, Wallace's military retirement pay was not taken into account by the divorce court in dividing the property. The divorce court specifically refused to consider "the future projected value of the military [retirement] pay of [Wallace] as a marital asset."

¶5 Almost three years later, Sarah learned about a change in federal law that permitted allocation of military retirement benefits between spouses at a divorce, see, e.g., Bullock v. Bullock, 354 N.W.2d 904 (N.D.1984), and moved to reopen the divorce decree so Wallace's military retirement benefits could be considered in the property division. At the time Sarah made the motion, she was told the court might reopen the entire property distribution. Sarah and Wallace then began discussing the possibility of remarrying each other, and they did so.

¶6 Before they remarried, however, Wallace and Sarah entered into a "Pre-Nuptual Agreement" on March 19, 1985. The attorney who represented Sarah in the divorce action drafted the prenuptial agreement. The agreement specifically referred to their earlier marriage and divorce, the motion pending to reopen the divorce case to determine Sarah's share of Wallace's military retirement benefits, and agreed "each party is the owner of certain real and personal property, the nature and extent of which has been fully disclosed by each to the other." The agreement said "both parties desire to define the interest which each shall have in the estate of the other during marriage or in the event they should in the future live separately from one another or become divorced." The agreement said:

1. The parties agree that upon their remarriage the military retirement pay of [Wallace] shall be considered a marital asset to be considered by the Court in the event of any future separation or divorce.

2. Both parties agree that property owned by them separately at this time, with the exception of the military retirement pay described above, shall remain their separate property in the event of their remarriage and shall further remain their separate property in the event of their divorce or separation.

3. Both parties stipulate and agree that any property acquired after their marriage and the question of spousal support, if any, will be settled by the parties or by the court in the event of a future separation or divorce.

The parties stipulated for the dismissal of the motion to reopen the divorce decree, and specified "[t]his Agreement shall come into effect only upon the solemnization of the marriage between the parties and shall then bind the parties and the respective heirs, executors and administrators."

¶7 After Wallace and Sarah remarried, on March 27, 1985, they lived together nearly nine months before they again experienced problems in their relationship. On May 30, 1986, Wallace and Sarah informally separated and lived apart from each other thereafter.

¶8 On August 6, 1986, Wallace executed his last will and testament. In the will, Wallace devised all of his property to his three "children, share and share alike, per stirpes." That devise, however, was subject to the following paragraph:

I am presently married and separated, contemplating divorce. I hereby leave my wife the legal minimum required by law. When we are legally divorced, I understand that the legal minimum is zero and it is my intention that if we are not husband and wife at the time of my demise my present wife, Sarah Lily Zimmerman, shall receive nothing from my estate.

Although they never lived together again, neither Wallace nor Sarah sought a legal separation or divorce. Neither spouse ever sought to settle spousal support or to divide property acquired after the marriage. Wallace continued to pay Sarah, even after their remarriage, the $1,000 per month for the property distribution in the divorce decree. The mortgage on the home set aside to Sarah in the divorce decree, and where she lived after the divorce and during their separation, was also paid off by Wallace.

¶9 Wallace died on January 1, 1994, and his son, Andrew C. Zimmerman, was appointed personal representative of the estate. In June 1994, Sarah gave notice of her intent to seek an elective share in the augmented estate under NDCC Ch. 30.1-05, and moved for a determination of her right to do so. The personal representative resisted the motion.

¶10 After an evidentiary hearing on only the elective share, the probate court rejected Sarah's claim to an elective share. The court ruled the language in the prenuptial agreement between Sarah and Wallace was ambiguous but, based on his assessment of other evidence at the hearing, found "Sarah waived, after fair disclosure, all of her rights in the property or estate of Wallace ... which is a waiver of all rights of Sarah as surviving spouse to an elective share, homestead allowance, exempt property, and family allowance by her in the property of Wallace."

¶11 Sarah and her daughter, Maureen, as a residuary devisee, appealed to this Court. We dismissed that appeal for lack of finality because the separate dispute about whether Wallace had devised Sarah the equivalent of an elective share in the will had not been resolved. See Matter of Estate of Zimmerman, 1997 ND 58, 561 N.W.2d 642. The personal representative then moved for summary judgment, arguing Sarah was entitled to nothing under Wallace's will either. The court granted summary judgment to the estate, ruling as a matter of law Wallace's will unambiguously "gives nothing to Sarah." Sarah and Maureen (collectively Sarah) appealed.

II

¶12 Sarah argues the probate court erred in ruling the prenuptial agreement validly waived her right to an elective share of the augmented estate, and in summarily dismissing her claim for the equivalent of an elective share under the will.

A

¶13 A prenuptial agreement is a contract, see Affiliated Banc Group, Ltd. v. Zehringer, 527 N.W.2d 585, 587 (Minn.Ct.App.1995), and its interpretation is primarily a question of law for the court to decide. See Binder v. Binder, 557 N.W.2d 738, 741 (N.D.1996). Only if the written agreement is ambiguous, or if it does not reflect the spouses' intent because of fraud, mistake, or accident, can a court employ parol evidence to clarify the terms of the contract, or to find the intent of the parties. See Pear v. Grand Forks Motel Associates, 553 N.W.2d 774, 779 (N.D.1996). Resolution of an ambiguity in a contract by extrinsic evidence is a finding of fact subject to review under the clearly erroneous standard of N.D.R.Civ.P. 52(a). See Matter of Estate of Brown, 1997 ND 11, p 15, 559 N.W.2d 818. As we said in Matter of Estate of Opatz, 554 N.W.2d 813, 815 (N.D.1996), the application and interpretation of the Uniform Probate Code statutes are also questions of law fully reviewable on appeal.

¶14 A surviving spouse's right to elect a share of the augmented estate is a creation of statute, separate and distinct from any rights under a will. See Cranston v. Winters, 238 N.W.2d 647, 652-653 (N.D.1976). The goal of an elective share of the augmented estate is to protect the surviving spouse from deprivation or destitution by disinheritance. See Matter of Estate of Luken, 551 N.W.2d 794, 797 (N.D.1996). Consequently, the right of a surviving spouse to statutory allowances is strongly favored under the law. See Estate of Smith, 674 P.2d 972, 973 (Colo.Ct.App.1983). The augmented estate generally consists of not only the decedent's net probate estate, and the decedent's gratuitous transfers to donees other than the surviving spouse, but also includes the value of the surviving spouse's property owned at the decedent's death and the value of property transferred by the surviving spouse to donees other than the decedent, to the extent the surviving spouse's owned and transferred property was derived from the decedent. ¹ NDCC...