of King , 444 P.3d 863 ( 2019 )


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  •      The summaries of the Colorado Court of Appeals published opinions
    constitute no part of the opinion of the division but have been prepared by
    the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
    Any discrepancy between the language in the summary and in the opinion
    should be resolved in favor of the language in the opinion.
    SUMMARY
    May 23, 2019
    2019COA82
    No. 18CA0541, Estate of King — Probate — Premarital Will —
    Entitlement of Spouse — Omitted Spouse Statute
    In this probate proceeding, a division of the court of appeals
    considers whether a surviving spouse is precluded from claiming a
    portion of a decedent’s estate under section 15-11-301(1)(c), C.R.S.
    2018, of the omitted spouse statute. The division concludes that
    the language of section 15-11-301(1)(c) grants the lower court the
    authority to reasonably infer the decedent’s intent when sufficient
    evidence is produced by the proponents of the will that the
    surviving spouse has been provided for. In this case, the division
    concludes that the lower court properly inferred the decedent’s
    intent to provide for his surviving spouse outside his will based on,
    among other factors, transfers totaling $4,052,000.00.
    COLORADO COURT OF APPEALS                                        2019COA82
    Court of Appeals No. 18CA0541
    Arapahoe County District Court No. 16PR30695
    Honorable H. Clay Hurst, Magistrate
    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.
    ORDER AFFIRMED
    Division III
    Opinion by JUDGE ROMÁN
    Webb and Freyre, JJ., concur
    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
    ¶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
    1
    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
    1 The estate also argued that decedent’s retirement plans, which
    went to surviving spouse, totaling $410,806, were a transfer that
    should be included as proof that surviving spouse’s omission was
    intentional. Because the magistrate’s order, as will be seen, did not
    include the retirement plans in its ultimate conclusion, neither do
    we.
    2
    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
    3
    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).
    2 The magistrate’s order stated that “[n]otwithstanding the fact that
    [surviving spouse] received the retirement funds in the amount of
    $410,806.00,” the amount of money surviving spouse received was
    “substantial.” It is unclear to us whether the magistrate made a
    determination as to whether this money constituted a “transfer” for
    purposes of section 15-11-301(1)(c), C.R.S. 2018, or simply chose
    not to use it within his calculations of the amount surviving spouse
    received. In the end, as will be discussed, regardless of whether the
    retirement plan amount was considered a transfer by the
    magistrate, his findings rested on a permissible inference based on
    the life insurance transfer and the value of the joint bank accounts.
    3 The parties dispute the net value of decedent’s estate, but the
    magistrate did not make a finding of the value. Like the magistrate,
    we do not decide the net value of the estate because, as will be
    discussed, the net value of the estate is not dispositive of the
    question before us.
    4
    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.
    “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. 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. 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.
    5
    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;
    6
    (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
    7
    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, 
    716 P.2d 1224
    , 1230 (Idaho 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
    8
    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 testator, we nevertheless find those factors helpful to our
    analysis. Indeed, Utah’s omitted spouse statute — Utah Code
    Annotated section 75-2-301 (West 2018) — is identical to Colorado
    9
    Revised Statutes section 15-11-301. 4 Accordingly, we adopt the
    factors articulated in Estate of Christensen and hold that, to
    determine whether an omitted spouse is entitled to an intestate
    share of an estate when a proponent of the will argues the exception
    under section 15-11-301(1)(c) applies, the court should examine the
    transfer in light of these factors, to the extent they are addressed by
    the evidence. To these factors, we add two additional points.
    ¶ 19   First, the plain language of section 15-11-301 makes no
    distinction between a transfer made to a future spouse in
    contemplation of marriage and a transfer made to a future spouse
    as a friend or in some other capacity. Rather, the statute requires a
    failure by the testator to provide for a surviving spouse in any
    capacity.
    ¶ 20   Second, the amount of the transfer may be considered in
    isolation or in relation to the total net probate estate. This is
    especially appropriate in Colorado, where intent can be reasonably
    4 Utah and Colorado both adopted the original Uniform Probate
    Code and subsequently adopted its revisions. Although the Estate
    of Christensen court considered the original Uniform Probate Code,
    the language at issue in both Estate of Christensen and this case
    did not change with the revisions, but was merely re-codified.
    10
    inferred from the amount of the transfer. See § 15-11-301(1)(c); see
    also In re Estate of Taggart, 
    619 P.2d 562
    , 569-70 (N.M. Ct. App.
    1980) (evidence supported a conclusion that the decedent’s intent
    was to provide for the surviving spouse by creation of joint accounts
    and a retirement plan); In re Estate of Knudsen, 
    342 N.W. 2d 387
    ,
    391 (N.D. 1984) (life insurance benefits and joint tenancy
    arrangements can constitute “transfers” for the purposes of the
    omitted spouse statute); In re Timmerman, 
    502 S.E.2d 920
     (S.C. Ct.
    App. 1998) (making no indication of the total value of the testator’s
    estate where the transfers to spouse totaled $1,191,000); Estate of
    Christensen, 655 P.2d at 650 (the surviving spouse’s gift, which
    only constituted four percent of the total value of the estate, was
    nevertheless a substantial dollar value considering the short
    marriage).
    ¶ 21   We now apply these principles to the facts of the present case.
    D.    Application
    ¶ 22   Surviving spouse first argues that the magistrate
    impermissibly shifted the burden of proof to her by requiring her to
    show that the “substantial” amount that she received was not
    11
    intentionally transferred in lieu of a testamentary provision. We
    apply the following burden-shifting test.
    ¶ 23   First the surviving spouse is required to prove that he or she is
    a spouse of the decedent and does not appear in the testamentary
    documents. See § 15-11-301(1).
    ¶ 24   Second, after the surviving spouse proves that he or she falls
    under section 15-11-301(1), the burden shifts to the proponent(s) of
    the will to establish that one of the exceptions set forth in section
    15-11-301(1)(a)-(c) applies. Unif. Probate Code § 2-301 cmt.; see In
    re Estate of Beaman, 
    583 P.2d 270
    , 274 (Ariz. Ct. App. 1978); Estate
    of Christensen, 655 P.2d at 650.
    ¶ 25   Third, if the proponents of the will have satisfied their burden,
    the surviving spouse may present rebuttal evidence that he or she
    was not provided for by those transfers. The evidence must be
    sufficient to establish that the transfer could not reasonably
    represent the testator’s effort to provide for his or her spouse in lieu
    of a testamentary provision. Estate of Christensen, 655 P.2d at 650.
    ¶ 26   Here, surviving spouse demonstrated that she was not
    provided for in the will. The burden then shifted to the estate (the
    proponents of the will) to present evidence that surviving spouse
    12
    was provided for by transfers she received outside of the will, which
    it did through evidence of life insurance, joint accounts, and
    retirement plan transfers. Surviving spouse then sought to rebut
    this evidence by arguing that there was no evidence that decedent
    intended those transfers to be in lieu of a testamentary provision.
    ¶ 27   After considering the evidence, the magistrate concluded that
    the amount of life insurance specifically
    created and designated for [surviving spouse]
    along with the jointly owned checking
    account(s) collectively totaling $4,052,000.00
    was a substantial monetary transfer that
    Decedent intended at that time be provide[d] to
    his new spouse outside of his pre-marital
    estate plan convincing this court that
    [surviving spouse] was not an omitted spouse.
    ¶ 28   Applying the test we announce today, we conclude that the
    record supports the magistrate’s determination that surviving
    spouse was not an omitted spouse under section 15-11-301.
    Specifically, the $4,000,000 life insurance transfer to surviving
    spouse provided six weeks before marriage and later ratified after
    marriage supports the permissible inference that decedent intended
    the transfer to provide for surviving spouse in lieu of a testamentary
    disposition. See Estate of Christensen, 655 P.2d at 650 (including
    “the dollar value of the testamentary gift to the surviving spouse”
    13
    and “the duration of the marriage” as relevant factors to determine
    whether a transfer was provided in lieu of a testamentary
    provision); see also Estate of Taggart, 
    619 P.2d at 569
     (considering
    the “not insignificant amount” transferred to the surviving spouse
    as evidence of intent to transfer in lieu of a testamentary provision).
    ¶ 29   This is so even though the life insurance transfer designation
    was made before decedent and surviving spouse’s marriage. Estate
    of Beaman, 
    583 P.2d at 274
     (“The section is designed to guard
    against unintentional disinheritance. It does not apply if the will
    states an intent to make no provision for a later spouse. Nor does it
    apply if before or after the marriage the testator makes some other
    provision for the spouse (a living trust, joint tenancy with right of
    survivorship, annuity, outright gift, or life insurance payable to the
    spouse) if this other provision was to take the place of a provision
    by will. The statute makes ‘statements of the testator’ admissible to
    show intent, but also permits other evidence to establish this.”)
    (citation omitted).
    ¶ 30   In addition, applying section 15-11-301(1)(c), we conclude that
    “other evidence” in the record supports the magistrate’s findings:
    14
    1.   Decedent first executed his will in 2000 and then
    executed codicils on three separate occasions modifying
    the existing will to account for changes in life
    circumstances. Thus, decedent knew how to amend his
    will but did not do so after he married surviving spouse.
    2.   After the marriage, decedent re-designated surviving
    spouse — as his spouse, whereas she had been
    designated as his “partner” before — as the beneficiary of
    a life insurance policy in the amount of $4,000,000.
    3.   The amount of this transfer was not minimal and
    presents the kind of “other evidence” contemplated in the
    statute to show intent.
    4.   Decedent and surviving spouse were married for a short
    period of time — ten months.
    5.   Surviving spouse received an additional $52,000 in
    transfers from joint accounts (not to mention decedent’s
    retirement plans outside of the will) in addition to the life
    insurance proceeds. See Estate of Taggart, 
    619 P.2d at 569-70
    ; In re Estate of Frandson, 
    356 N.W.2d 125
    , 128
    (N.D. 1984).
    15
    ¶ 31   For these reasons, we find no error in the magistrate’s findings
    that surviving spouse is not an omitted spouse under section 15-
    11-301.
    ¶ 32   In light of this disposition, we do not reach what share of the
    estate surviving spouse would have been entitled to had she fallen
    under section 15-11-301.
    III.   Conclusion
    ¶ 33   The magistrate’s order is affirmed.
    JUDGE WEBB and JUDGE FREYRE concur.
    16