Pour-Over Will Leads to Spousal Elective Share

Elder Law Answers case summary.The Wyoming Supreme Court affirms the probate court’s decision to allow a widow to claim a spousal elective share, as her deceased husband’s will leaves everything to his trust. In Silverwood v. Tokowitz (Mont. No. S-23-0114, January 12, 2024).

Carol Tokowitz was married to her husband, Neal Tokowitz, for 30 years before he died. Her husband left behind surviving children from a previous marriage. He had a pour-over will that funded a revocable living trust. His will did not name his wife or anyone else as a beneficiary, only the trust.

After her husband’s executor, Mr. Silverwood, filed a petition to probate the will, Mrs. Tokowitz asserted her rights to the elective share of her late husband’s estate under the Wyoming spousal elective share statute. The probate court granted her spousal share and declined to rule on her interests in the trust. Mr. Silverwood and a trustee, Randy Green, appealed. They argued that she was not entitled to take a spousal elective share and that taking one should prevent her from receiving anything from the trust.

The highest court reviews whether the probate court’s finding was clearly erroneous, inconsistent with the evidence, or contrary to the great weight of the evidence. It reviews statutory interpretation de novo.

The Wyoming spousal elective share statute provides that a married person domiciled in the state must provide a spouse at least an elective share subject to distribution in the will. If, as in this case, the surviving spouse is not a parent of the decedent’s surviving children, the elective share is a quarter of the estate.

The executor and trustee argued that although Mr. Tokowitz was a Wyoming resident, he was not domiciled in Wyoming full-time. The petition to probate the will states that he was a resident of Park County, Wyoming, but the pour-over will states that he was domiciled there. The probate court implied that he was domiciled in Wyoming when it decided that his surviving wife was entitled to an elective share.

A domicile is a legal residence where a person intends to stay. A person can have many residences but only one domicile. As the will presents evidence that the decedent’s domicile was in Wyoming, Mrs. Tokowitz met her burden of establishing a Wyoming domicile. The burden then shifted to the personal representative and trustee, and they failed to show that Mr. Tokowitz was domiciled elsewhere.

The executor and trustee’s next argument concerned the amount Mrs. Tokowitz would receive under the trust. They asserted that the district court should not have given her the elective share because it did not know whether she would receive more or less than a quarter of the estate under the trust.

The trust’s terms are not relevant. The spousal elective share statute solely pertains to the will. Mr. Tokowitz’s will only left his property to his trust and did not name his wife, which effectively entitles her to the spousal elective share statute.

Finally, Mr. Silverwood and Mr. Green claimed that the property was not subject to probate because the will poured over into the trust. However, property that passes via a pour-over will is part of the probated estate and subject to the spousal elective share. Assets that transfer through a pour-over will are not exempt from the probated estate.

The district court did not err when it declined to rule on Mrs. Tokowitz’s interests in the trust. Once the assets pass to the trust, they become non-probate assets. No case law or statutory authority supports ruling on non-probate assets.

The Supreme Court of Montana finds that the district court correctly allowed Mrs. Tokowitz to take a spousal elective share. The lower court rightly determined that it lacked jurisdiction to rule on claims arising from the trust.

Read the full opinion.