Omitted Spouse Is Not Entitled to Intestate Share

A second wife omitted from a will her husband executed before she came on the scene is not entitled to her intestate share due to clear and convincing evidence that the decedent intended to disinherit her. Bay v. Estate of Bay (Wash. Ct. App., Div. 1, No. 52687-1-I, Jan. 31, 2005).

John Bay created a will in 1983 that left everything to his wife, then in trust to their children. Mr. Bay's will emphasized his desire that his estate provide for his children's college education. Mr. Bay and his wife divorced in 1986. Thirteen years later, Mr. Bay married Laura Bay. Although he did not make any changes to his will, Mr. Bay changed the beneficiary designation of his 401(k) plan so that Mrs. Bay was an 80 percent beneficiary. He designated his two children as equal beneficiaries of the remaining 20 percent.

Following Mr. Bay's suicide in 2000, the personal representative of his estate proposed to distribute the probate assets equally between the two children. Mrs. Bay protested, claiming that as an omitted spouse she was entitled to her intestate share of the probate estate. A Washington statute provides that an omitted spouse must receive the intestate share "unless it appears either from the will or from other clear and convincing evidence that the failure was intentional." The superior court rejected Mrs. Bay's claim and she appealed, arguing that it is impossible to determine what her husband as testator intended with respect to her, as he was not married to her when he executed the will.

The Court of Appeals of Washington affirms. The court rules that under the omitted spouse statute, the trial court was properly concerned with the intent of the 'decedent', not the `testator'. Although finding that Mrs. Bay is entitled to the presumption that she should receive a full intestate share, the court holds that this presumption is rebutted by clear and convincing evidence. The court points to Mr. Bay's desire to support his children's college education, expressed not only in his will but also in the property settlement agreement with his first wife, as well as the provision he made for Mrs. Bay outside the will.

For the full text of this decision, go to:https://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=526871MAJ.

Did you know that the ElderLawAnswers database now contains summaries of more than 800 fully searchable elder law decisions dating back to 1993? To search the database, click here.