King v. Bell (In re Estate of King)

• Decision Date: 23 May 2019
• Docket Number: Court of Appeals No. 18CA0541
• Citation: 444 P.3d 863
• Parties: IN RE the ESTATE OF Mark M. KING, deceased. Julie M. King, Appellant, v. Carylyn K. Bell, as Personal Representative of the Estate of Mark M. King; Michael McCandish King; and Colton McCandish King, Appellees.
• Court: Colorado Court of Appeals

444 P.3d 863

IN RE the ESTATE OF Mark M. KING, deceased.

Julie M. King, Appellant,

v.Carylyn K. Bell, as Personal Representative of the Estate of Mark M. King; Michael McCandish King; and Colton McCandish King, Appellees.

Court of Appeals No. 18CA0541

Colorado Court of Appeals, Division III.

Announced May 23, 2019

Jones & Keller, P.C., G. Stephen Long, Denver, Colorado, for Appellant

Springer and Steinberg, P.C., Jeffrey A. Springer, Craig L. Pankratz, Denver Colorado, for Appellee Carylyn K. Bell

Brownstein Hyatt Farber Schreck, LLP, Carrie E. Johnson, Denver, Colorado, for Appellees Michael McCandish King and Colton McCandish King

Opinion by JUDGE ROMÁN

¶1 This appeal presents a probate question of first impression in Colorado: Does the omitted spouse statute, section 15-11-301(1)(c), C.R.S. 2018, preclude a surviving spouse from claiming an intestate share of the decedent’s estate where the decedent did not mention the surviving spouse of ten months in his will but did leave her $ 4,000,000 in life insurance proceeds and $ 52,000 in joint bank accounts? Applying section 15-11-301, we conclude that the answer is yes. Therefore, we affirm.

I. Background

¶2 Julie M. King (surviving spouse) filed a "Petition for an Omitted Spouse Share," contending that she was unintentionally disinherited from the estate of Mark M. King (decedent) and, therefore, entitled to "$ 163,000.00 (indexed for inflation) ... plus 50% of the balance of the estate." The personal representative, decedent’s sister Carylyn K. Bell, and decedent’s children, Michael McCandish King and Colton McCandish King (collectively, the estate), opposed the petition, arguing that surviving spouse’s omission was intentional because decedent provided for her outside of the will — namely, through $ 4,462,806 she received in life insurance proceeds and joint bank accounts.¹

¶3 The magistrate held an evidentiary hearing. Following the hearing, the magistrate entered a written order regarding the Petition for an Omitted Spouse Share. The magistrate found the following.

¶4 Decedent established his estate plan in 2000. In doing so, he created a pourover will and the Mark M. King Revocable Trust. Decedent also executed three codicils to the will and amended the trust three times.

¶5 In May 2015, decedent and his first wife divorced. Decedent and surviving spouse began dating, and by July 2015 decedent regarded surviving spouse as his "partner." On July 27, 2015, decedent obtained a $ 5,000,000 life insurance policy and designated surviving spouse, then known as Julie Pelletier, to receive $ 4,000,000 of the policy and another friend, Jana Olsen, to receive the other $ 1,000,000.

¶6 Decedent and surviving spouse married six weeks later, on September 16, 2015. Decedent did not amend his will or trust documents.

¶7 But, eight months later, on May 19, 2016, decedent did amend the $ 4,000,000 life insurance policy to reflect his new spouse. Specifically, he wrote to the Northwestern Mutual Insurance Company about amending the life insurance policy:

I just looked at insurance summary and it was not clear that my Wife Julie Michelle King is the beneficiary of the $ 4mm of the $ 5mmm policy. First it shows her maiden name of Pelletier but second does not specify her allocation of 80% of the policy. Can you please correct her name change and send a policy that provides that she is beneficiary, Thanks Mark King.

Decedent passed away two months later.

¶8 In addition to the $ 4,000,000 life insurance policy, surviving spouse received about $ 52,000 contained in joint bank accounts and $ 410,806 from decedent’s retirement plans.² In total, surviving spouse received $ 4,462,806. Conversely, according to decedent’s will, eighty-five percent of decedent’s estate poured into the Mark M. King Revocable Trust for his children and fifteen percent went to other family members and charity.³

¶9 Based on these findings, the magistrate concluded that surviving spouse was not an omitted spouse. This appeal followed. See C.R.M. 7(b).

II. Entitlement of Surviving Spouse: Effect of Premarital Will

A. Standard of Review

¶10 We review a judgment entered after a trial to the court as a mixed question of fact and law. Jehly v. Brown , 2014 COA 39, ¶ 8, 327 P.3d 351. "We defer to the court’s credibility determinations and will disturb its findings of fact only if they are clearly erroneous and not supported by the record.... We review de novo the court’s application of the governing legal standards." Id. (quoting Lawry v. Palm , 192 P.3d 550, 558 (Colo. App. 2008) ).

¶11 In addition, we interpret statutes de novo. Sandstead-Corona v. Sandstead , 2018 CO 26, ¶ 38, 415 P.3d 310. In construing a statute, "we look to the entire statutory scheme in order to give consistent, harmonious, and sensible effect to all of its parts, and we apply words and phrases in accordance with their plain and ordinary meanings." UMB Bank, N.A. v. Landmark Towers Ass’n , 2017 CO 107, ¶ 22, 408 P.3d 836. If the statutory language is clear, we apply it as written with the goal of effectuating the legislature’s intent. Sandstead-Corona , ¶ 39 ; see St. Vrain Valley Sch. Dist. RE-1J v. Loveland , 2017 CO 54, ¶ 11, 395 P.3d 751.

B. Section 15-11-301 of the Colorado Probate Code

¶12 The omitted spouse statute — section 15-11-301 — of the Colorado Probate Code is designed to protect the testator’s surviving spouse against unintentional disinheritance resulting from a premarital will. The statute reads in part:

If a testator’s surviving spouse married the testator after the testator executed his or her will, the surviving spouse is entitled to receive, as an intestate share, no less than the value of the share of the estate he or she would have received if the testator had died intestate as to that portion of the testator’s estate, if any, that neither is devised outright to nor in trust for the benefit of a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse nor is so devised to a descendant of such a child, or passes under section 15-11-603 or 15-11-604 to such a child or to a descendant of such a child....

§ 15-11-301(1).

¶13 Because the protection afforded by the omitted spouse statute relates only to unintentional disinheritance, the statute does not apply if:

(a) It appears from the will or other evidence that the will was made in contemplation of the testator’s marriage to the surviving spouse;

(b) The will expresses the intention that it is to be effective notwithstanding any subsequent marriage; or

(c) 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 the testator's statements or is reasonably inferred from the amount of the transfer or other evidence.

§ 15-11-301(1).

¶14 If any of these three exceptions apply, the surviving spouse is not entitled to an omitted spouse share of the testator’s estate. Conversely, if none of the exceptions apply, the surviving spouse shall receive an omitted share of the testator’s estate. § 15-11-301.

C. Intent That Transfer be in Lieu of a Testamentary Provision

¶15 In Colorado, intent that a transfer was in lieu of a testamentary provision may be (1) shown by the testator’s statements; (2) reasonably inferred from the amount of the transfer; or (3) reasonably inferred from other evidence. § 15-11-301(1)(c). In this case, the magistrate did not accept any evidence of decedent’s statements. However, the parties dispute whether the magistrate could reasonably infer the intent of the decedent from the amount of the transfer and whether there exists other evidence of the decedent’s intent. Because no Colorado case has interpreted Colorado’s omitted spouse statute, we look to decisions from other states that, like Colorado, have adopted versions of Uniform Probate Code section 2-301. See, e.g. , In re Estate of Becker , 32 P.3d 557, 563 (Colo. App. 2000) (examining other jurisdictions’ interpretation of the Uniform Probate Code to determine revocation by divorce). Indeed, section 15-11-301 of the Colorado Probate Code is identical to the corresponding section 2-301 of the Uniform Probate Code. Unif. Probate Code § 2-301 (Unif. Law Comm’n 1969) (amended 2010).

¶16 When determining whether a transfer was intended to be in lieu of a testamentary provision, courts in other jurisdictions have concluded that the important inquiry is not the form in which the transfer was made, or when the transfer occurred, but rather whether the transfer was so minimal and made in such a way that it appears the testator failed to provide for his surviving spouse. In re Estate of Keeven , 110 Idaho 452, 716 P.2d 1224, 1230 (1986) ; Estate of Christensen v. Christensen , 655 P.2d 646, 650 (Utah 1982).

¶17 In Estate of Christensen , the testator’s premarital will left the bulk of his estate in trust for his granddaughter while his surviving spouse received the value of corporate stock — a devise left to her, in the will, before they were married. As part of its analysis, the Utah Supreme Court established several factors to consider in determining whether the testator intentionally provided for a surviving spouse by transfer outside of the will:

(1) the alternative takers under the will, (2) the dollar value of the testamentary gift to the surviving spouse, (3) the fraction of the estate represented by that gift, (4) whether comparable gifts were made to other persons, (5) the length of time between execution of the testamentary instrument and the marriage, (6) the duration of the marriage, (7) any inter vivos gifts the testator has made to the surviving spouse, and (8) the separate property and needs of the surviving spouse.

Estate of Christensen , 655 P.2d at 650 ; accord Estate of Keeven , 716 P.2d at 1230-31.

¶18 Although Estate of Christensen is factually different from this case because, there, the transfer occurred within the premarital will of the...