GREEN EX REL. COTTRELL v. Cottrell, 3353.

• Citation: 550 S.E.2d 324,346 S.C. 53
• Decision Date: 11 June 2001
• Docket Number: No. 3353.,3353.
• Court: South Carolina Court of Appeals
• Parties: Shirley E. J. GREEN, Personal Representative of the ESTATE OF Marilyn Anne COTTRELL, Appellant, v. Willard C. COTTRELL, Personal Representative of the ESTATE OF Martin L. COTTRELL, and National Bank of South Carolina, Trustee of the Martin L. Cottrell Trust, Dated November 21, 1997, Respondents.

346 S.C. 53

550 S.E.2d 324

Shirley E. J. GREEN, Personal Representative of the ESTATE OF Marilyn Anne COTTRELL, Appellant, v. Willard C. COTTRELL, Personal Representative of the ESTATE OF Martin L. COTTRELL, and National Bank of South Carolina, Trustee of the Martin L. Cottrell Trust, Dated November 21, 1997, Respondents.

No. 3353.

Court of Appeals of South Carolina.

Heard May 8, 2001.

Decided June 11, 2001.

Rehearing Denied August 17, 2001.

F. Craig Wilkerson, Jr., of Rock Hill; John S. Nichols, of Bluestein & Nichols, of Columbia, for appellant.

John G. Frampton, of Chellis & Frampton, of Summerville; Edward D. Buckley, Jr., Stephen P. Groves, Sr., and Stephen L. Brown, of Young, Clement, Rivers & Tisdale, of Charleston, for respondents.

ANDERSON, Judge.

Shirley E.J. Green, as Personal Representative of the Estate of Marilyn Anne Cottrell, appeals the Circuit Court's grant of summary judgment to Willard C. Cottrell, Personal Representative of the Estate of Martin L. Cottrell, and the National Bank of South Carolina, as Trustee of the Martin L. Cottrell Trust. The court held Marilyn Cottrell was not an omitted spouse pursuant to S.C.Code Ann. § 62-2-301. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

In 1996, 56-year-old Martin Cottrell, his brother Willard, and his sister-in-law met with Attorney Thomas Cothran to create Martin's estate plan.¹ Martin told Cothran he wanted his assets to remain in his bloodline. Cothran drafted a will bequeathing Martin's personal property to his brother and devising his home to his father. The remainder of Martin's estate formed a residuary trust for the benefit of his niece and two nephews. Martin executed the will on April 23, 1996.

Martin returned to Cothran's office a year and a half later, this time with his girlfriend, Marilyn Anne Jackson. Martin wanted to revise his estate plan to include Marilyn and to accommodate any future marriage to her, but to keep his assets ultimately within his family bloodline. In an affidavit submitted to the Circuit Court, Cothran described this meeting as follows:

5. On November 18, 1997, Affiant met with Marty and Marilyn Anne Jackson to discuss revisions to Marty's estate plan. At this meeting[,] both of them participated in the discussion of how to modify the recently created drafts of Marty's estate plan. Marty again expressed to Affiant his feeling that keeping family assets in the bloodline was very important to him, but benefits to his blood kin would be delayed until after Marilyn['s] life time (sic) needs were taken care of by way of [a] trust for her. Marty had previously told Affiant that he wanted a trust for Marilyn's benefit in such a way that she would have her needs taken care of during her life time (sic)[,] but he stated very clearly that he wanted any assets remaining at her later death to benefit his family. During a two hour conference, Affiant, Marty, and Marilyn fully discussed estate plan options including outright gifts, gifts in trust, provisions for spouse and blood kin, etc. Marilyn expressed appreciation for the provisions made for her and she expressed full agreement that such provisions were fair and appropriate to provide for her and to provide for Marty's brother's family.

6. Marty repeatedly said that he wanted Marilyn to marry him and he made the estate plan provisions for her in contemplation of their eventual marriage. Marty wanted life time (sic) benefits for Marilyn in his estate plan even if they were never married. Affiant, Marty, and Marilyn fully discussed (during the November 18th conference) the estate tax advantages of a trust[,] which qualifies for the federal estate tax marital deduction by providing for a surviving spouse for life and then the remainder being available for the family of the spouse who dies first. This type of trust is commonly referred to as a "Qualified Terminable Interest Trust" or a "QTIP" trust and can save estate taxes only if the parties are legally husband and wife. Marty wanted the trust for Marilyn designed to take advantage of this tax saving device after he and Marilyn were married, but did not want to have to change his estate plan after they were married. Therefore, the estate plan was designed to put into effect his wishes to protect Marilyn regardless of their marriage, but was clearly (as articulated by Marty and approved by Marilyn) prepared in contemplation of their marriage even though a wedding date was not set at the time of the signing of Marty's estate plan on November 21, 1997.

7. Marty signed his estate plan (Revocable Trust Agreement and Will) on November 21, 1997. Provisions were included for Marilyn's benefit if Marty and Marilyn were not married at the time of Marty's death. Other provisions were included for Marilyn's benefit if they were married at the time of Marty's death. The "QTIP" provisions could only apply if they were married at the time of Marty's death; therefore, on the face of the estate plan, Marty clearly made his estate plan in contemplation of marriage to Marilyn. This is in full accord with Marty's wishes as stated to Affiant during the estate planning process and as explained by Affiant to both Marty and Marilyn.

On April 4, 1998, 58-year-old Martin married 49-year-old Marilyn. Within eleven days of the marriage, both of them were dead. Martin died of an acute myocardial infarction on April 7, 1998. Marilyn died on April 15, 1998, from a cerebellar infarction due to basilar artery thrombosis. Neither Martin nor Marilyn had any surviving children.

Martin did not execute a new will after the marriage. His last will and testament was the one Cothran drafted in 1997. This will, dated November 21, 1997, provided:

I [Martin Cottrell] am not married. I have no children.

I have a special friend, MARILYN ANNE JACKSON, for whom I am making certain provisions in my estate plan (whether under this instrument or under any other instrument). Except as otherwise specifically provided, I intend for these provisions to apply for her benefit whether or not we should ever become husband and wife. (emphasis added).

In the will, Martin bequeathed his personal and household effects to Marilyn. The Revocable Trust Agreement, also dated November 21, 1997, provided:

The Settlor [Martin Cottrell] is not married. The Settlor has no children. The Settlor has a special friend, MARLYN ANNE JACKSON, for whom he is making certain provisions in his estate plan (whether under this instrument or under any other instrument). Except as otherwise specifically provided, the Settlor intends for these provisions to apply for her benefit whether or not they should ever become husband and wife.

(emphasis added).

In addition to the Trust Agreement's references to Marilyn as Martin's "special friend," the Agreement contained numerous references to Marilyn as the Settlor's "wife" or "spouse" and the Trust C provisions were only effective in the event Martin and Marilyn married.² Martin's brother, Willard, was appointed personal representative of Martin's estate. Marilyn's sister, Shirley Green, was appointed personal representative of Marilyn's estate.

By petition dated December 3, 1998, Green filed an action claiming Marilyn was an "omitted spouse" and entitled to Martin's entire estate. The action further alleged breach of contract, unjust enrichment, and the creation of a constructive trust. Besides the entire estate, Green sought the delivery of personal property and homestead exemptions.

On January 4, 1999, Willard Cottrell moved for removal of the action to the Circuit Court. In a motion filed with the court on June 24, 1999, Green sought summary judgment. Willard later moved for summary judgment.

The Circuit Court heard the parties' cross motions on September 8, 1999. The judge subsequently ruled Marilyn was not an "omitted spouse" within the meaning of § 62-2-301 because Martin's will was made in contemplation of his marriage to Marilyn and "Marilyn Anne Cottrell was clearly provided for within the meaning of the omitted spouse statute and that there is no genuine issue of material fact in this regard." The trial judge granted summary judgment to Willard.³ Green appeals.

STANDARD OF REVIEW

An action under the omitted spouse statute is an action at law. Timmerman v. Timmerman, 331 S.C. 455, 502 S.E.2d 920 (Ct.App.1998).

"Summary judgment is appropriate when `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Bruce v. Durney, 341 S.C. 563, 565, 534 S.E.2d 720, 722 (Ct.App.2000) (quoting Rule 56(c), SCRCP). This Court will review the granting of summary judgment under the same standard applied by the trial court pursuant to Rule 56, SCRCP. Murray v. Holnam, Inc., 344 S.C. 129, 542 S.E.2d 743 (Ct. App.2001).

LAW/ANALYSIS

Green argues genuine issues of material fact existed regarding whether Marilyn was an "omitted spouse" under § 62-2-301. Specifically, Green alleges the court failed to take notice of the language of the will that the parties were not married and to weigh the distribution of the assets to determine "if there was a meaningful `providing for'" of Marilyn.

Section 62-2-301 reads:

(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, upon compliance with the provisions of subsection (c), shall receive the same share of the estate he would have received if the decedent left no will unless:

(1) it appears from the will that the omission was intentional; or

(2) 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,

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