Dragovich v. Dragovich , 2012 Ohio 4114 ( 2012 )


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  • [Cite as Dragovich v. Dragovich, 
    2012-Ohio-4114
    .]
    STATE OF OHIO, MAHONING COUNTY
    IN THE COURT OF APPEALS
    SEVENTH DISTRICT
    ESTATE OF LISA DRAGOVICH                            )   CASE NO. 11 MA 200
    )
    PLAINTIFF-APPELLEE                          )
    )
    VS.                                                 )   OPINION
    )
    JEFFREY DRAGOVICH                                   )
    )
    DEFENDANT-APPELLANT                         )
    CHARACTER OF PROCEEDINGS:                               Civil Appeal from Court of Common
    Pleas, Probate Division, of Mahoning
    County, Ohio
    Case No. 11 ES 248
    JUDGMENT:                                               Affirmed.
    APPEARANCES:
    For Plaintiff-Appellee:                                 Atty. Lynn Sfara Bruno
    412 Boardman-Canfield Road
    Youngstown, Ohio 44512
    For Defendant-Appellant:                                Atty. John F. Shultz
    4822 Market Street, Suite 220
    Boardman, Ohio 44512
    JUDGES:
    Hon. Joseph J. Vukovich
    Hon. Cheryl L. Waite
    Hon. Mary DeGenaro
    Dated: September 7, 2012
    [Cite as Dragovich v. Dragovich, 
    2012-Ohio-4114
    .]
    VUKOVICH, J.
    {¶1}    Appellant Jeffrey Dragovich appeals the decision of the Mahoning
    County Probate Court, which dismissed his election to take against the will of Lisa
    Dragovich. The issue on appeal is whether a separation agreement incorporated into
    a judgment entry eliminates the husband’s right as a surviving spouse to elect
    against the decedent’s will, which excluded him as a beneficiary. We conclude that
    where a separation agreement evinces the parties’ intention to fully and finally
    dispose of each party’s prospective property rights in the property of the other, then
    the right to elect to take against a will is considered to have been relinquished unless
    the separation agreement expressly provides otherwise. The trial court’s judgment is
    affirmed.
    STATEMENT OF THE CASE
    {¶2}    The Dragovichs married in 1995 and had no children. They filed for
    divorce in the Mahoning County Domestic Relations Court.            They then mutually
    agreed to convert the divorce pleadings into those for legal separation. On February
    9, 2010, the domestic relations court entered a Final Judgment Entry of Legal
    Separation. The introduction stated that the parties:
    do settle and determine and hereby provide for present and future
    spousal support, the division of all property owned by the parties or
    either of them, real or personal, the payment of all liabilities of the
    parties or either of them, and all other benefits and privileges conferred
    -2-
    and all obligations imposed on either of the parties by virtue of their
    marital relationship.
    {¶3}    The separation entry provided that the parties would evenly split the
    $870 monthly checks they receive as a result of a marital business they previously
    sold. The entry also provided that should the husband predecease the wife, the wife
    will be able to claim and receive the entire amount of the check from the husband’s
    estate (as she would no longer receive the agreed upon spousal support or health
    insurance).
    {¶4}    In April of 2011, the wife executed a will devising any money she was
    receiving from the sale of the former marital business to her mother and two sisters.
    The will stated that her husband was to receive nothing from her estate, specifically
    including in this prohibition the funds to which she was entitled under the final
    judgment entry of legal separation. The separation entry was attached to the will.
    The wife died two weeks later. On May 5, 2011, her sister applied to have the will
    probated.
    {¶5}    On September 23, 2011, the husband filed a timely election to take
    against the will.   See R.C. 2106.25 (must be filed within five months from the
    appointment of the executor). The executor filed a motion to dismiss the election
    request, arguing that his election violates the portion of the separation document
    stating that the wife will receive half of the proceeds of the sale of the business. The
    executor pointed out that the separation agreement was valid as the husband did not
    file an action to set it aside within four months of the executor’s appointment as
    -3-
    required by another statute. See R.C. 2106.22 (separation or antenuptial agreement
    valid unless action to set it aside is filed or it is otherwise attacked within four months
    of fiduciary’s appointment).
    {¶6}   The husband replied that he was not seeking to set aside the
    separation agreement, also noting that there existed a separation entry rather than a
    mere separation agreement. He argued that there is no language in the separation
    agreement or entry that relinquished his statutory right to share in his wife’s estate.
    He urged that the court should not infer the waiver of the right to elect against a will
    by the mere fact of legal separation.
    {¶7}   On November 16, 2011, the probate court dismissed the husband’s
    election request. The court recognized that the separation entry does not specifically
    refer to rights that may emanate to a surviving spouse under probate law but relied
    on the introductory paragraph declaring that the parties have provided for the division
    of all property and have settled and determined all other benefits and privileges
    conferred by virtue of marriage.
    {¶8}   The court concluded that the issuance of a separation entry intended to
    settle and determine all property rights between the parties and thus terminated the
    right of the surviving spouse to elect to take against the will. The court agreed with
    case law holding that implicit in the grant of a final decree of legal separation is the
    termination of the rights of the surviving spouse. See Hering v. Hering, 9th Dist. No.
    03CA8410, 
    2005-Ohio-262
    ; In re Estate of Ramminger, 12th Dist. No. CA2002-08-
    189, 
    2003-Ohio-3697
    . See also In re Estate of Robinson, 2d Dist. No. 85CA16
    -4-
    (Sept. 19, 1985) (Kearns, J., dissenting). The probate court noted by analogy that
    there is a statute providing that a will to a former spouse is revoked (and the estate
    passes as if the surviving spouse predeceased the decedent) if the parties entered
    into a separation agreement intending to fully and finally settle their prospective
    property rights in the property of the other. See R.C. 2107.33(D)-(E).
    {¶9}   The husband filed timely notice of appeal from the probate court’s
    dismissal of his election action, which was a final order. See In re Estate of Riley,
    
    164 Ohio App.3d 471
    , 
    847 N.E.2d 22
    , 
    2006-Ohio-956
    , ¶ 11 (4th Dist.) (finding the
    dismissal of election action to be a final appealable order and explaining how certain
    election options could be foreclosed if appeal waited until final administration, such
    as right to certain property that could be sold by executor during administration). See
    also In re Estate of Geanangel, 
    147 Ohio App.3d 131
    , 137, 
    2002-Ohio-850
    , 
    768 N.E.2d 1235
    , ¶ 12-29 (3d Dist.2002) (order overruling an application for letters
    testamentary is a final, appealable order).
    ASSIGNMENT OF ERROR
    {¶10} The husband’s sole assignment of error provides:
    IT IS REVERSIBLE ERROR FOR THE COURT, IN THE ABSENCE OF
    A SPECIFIC AGREEMENT WAIVING THE STATUTORILY CREATED
    RIGHT OF A SURVIVING SPOUSE TO TAKE AGAINST THE WILL OF
    A DECEASED SPOUSE, TO DISALLOW THE ELECTION TO TAKE
    AGAINST THE WILL BY THE SURVIVING SPOUSE.
    -5-
    {¶11} The husband makes three points: this is a separation, not a divorce; the
    separation was by judgment entry, not a mere agreement; and the entry was devoid
    of language explicitly waiving the right to elect against a decedent’s will. He asks this
    court to adopt the position of the Second District in Robinson over the position of the
    Twelfth District in Ramminger and the Ninth District in Hering.
    {¶12} The executor initially emphasizes that the husband has not sought to
    set aside or otherwise attack the validity of the separation agreement and entry.
    However, he need not do so because he does not wish to modify or eliminate the
    provisions of the entry. Rather, he asks for a ruling that the entry contains no specific
    language prohibiting him from exercising his statutory right to elect against his wife’s
    will and thus he is not so prohibited; whereas, the executor argues that when two
    spouses enter a legal separation intending to fully and finally determine property
    rights, each implicitly waives their rights as a surviving spouse.
    {¶13} In the Twelfth District’s Ramminger case, a legal separation decree
    provided the wife with child and spousal support and divided the property between
    the parties. Ramminger, 12th Dist. No. CA2002-08-189. The wife then died, and the
    husband filed an election against the will under R.C. 2106.13 asking for a family
    allowance. 
    Id.
     The Twelfth District noted that the separation entry did not include a
    clause waiving the rights of a surviving spouse but ruled that such a clause was not
    required because the decree extensively addressed and definitively made a full and
    final determination of the parties’ property and support rights.        
    Id.
       That court
    -6-
    announced: “We find implicit in the grant of the legal separation in the instant case is
    the termination of the rights of the surviving spouse at issue here.” 
    Id.
    {¶14} The Ninth District was presented with a case where the wife argued that
    the domestic relations court abused its discretion by failing to include in a separation
    decree a proposed provision releasing the right of inheritance and other property
    rights in anticipation of the wife’s death. Hering, 9th Dist. No. 03CA8410 at ¶ 4. The
    appellate court ruled that a provision waiving the rights of the surviving spouse was
    unnecessary because “where two spouses enter into a legal separation decree
    intending to fully and finally determine property rights between them, each implicitly
    waives their rights as surviving spouse.”        
    Id.,
     citing Ramminger, 12th Dist. No.
    CA2002-8-189 at ¶ 11 and R.C. 2107.33(D).
    {¶15} The Second District has ruled to the contrary. In the Robinson case
    relied upon by the husband here, the domestic relations court filed an Agreed Final
    Judgment Entry for Alimony Only, which incorporated the terms of an oral separation
    agreement, divided all of the parties’ property, and provided for support.          The
    Robinsons did not divorce because the wife was ill and needed health insurance.
    Before dying, the wife executed a will omitting her husband. He then filed an election
    to take against the will. The probate court denied his request to elect against the will,
    finding that although the domestic judgment was silent regarding a release of claims
    against the other’s estate, the elimination of such right is inferred.
    {¶16} The Second District reversed, applying the reasoning of the Ohio
    Supreme Court in a case dealing with a prenuptial agreement. Robinson, 2d Dist.
    -7-
    No. 85CA16, citing Troha v. Sheller, 
    169 Ohio St. 397
    , 
    159 N.E.2d 899
     (1959). In
    Troha, the Court held that “strong and unmistakable language” was necessary in a
    prenuptial agreement in order to deprive a surviving spouse of the special benefits
    conferred by statute such as the right to elect against a will. Troha, 
    169 Ohio St. 397
    (agreement specifically waived statutory rights the surviving spouse had in her
    spouse’s estate).
    {¶17} The Second District then held that waiver of the statutory right to take
    against a spouse’s will cannot be inferred; rather, there must be “a clear indication
    that he intended” to waive the right to election. Robinson, 2d Dist. No. 85CA16. The
    court concluded that the statement that the parties “have arrived at an agreement
    pertaining to a division of property as well as the establishment of alimony and other
    matters” was insufficient to waive election rights. 
    Id.
    {¶18} The dissent opined that a written waiver, while desirable, is not
    necessarily required where the intentions of the parties are readily discernible. 
    Id.
    (Kearns, J., dissenting) (expressing that the parties essentially agreed to a de facto
    divorce with both agreeing to the total property each would take from the marriage).
    We note here that the language in the case before us is more specific than the
    language used in the agreement at issue in Robinson.
    {¶19} As aforementioned, the probate court here cited the following statutory
    provisions by analogy:
    (D) If after executing a will, a testator is divorced, obtains a dissolution
    of marriage, has the testator's marriage annulled, or, upon actual
    -8-
    separation from the testator's spouse, enters into a separation
    agreement pursuant to which the parties intend to fully and finally settle
    their prospective property rights in the property of the other, whether by
    expected inheritance or otherwise, any disposition or appointment of
    property made by the will to the former spouse or to a trust with powers
    created by or available to the former spouse, any provision in the will
    conferring a general or special power of appointment on the former
    spouse, and any nomination in the will of the former spouse as
    executor, trustee, or guardian shall be revoked unless the will expressly
    provides otherwise.
    (E) Property prevented from passing to a former spouse or to a trust
    with powers created by or available to the former spouse because of
    revocation by this section shall pass as if the former spouse failed to
    survive the decedent, and other provisions conferring some power or
    office on the former spouse shall be interpreted as if the spouse failed
    to survive the decedent. If provisions are revoked solely by this section,
    they shall be deemed to be revived by the testator's remarriage with the
    former spouse or upon the termination of a separation agreement
    executed by them. (Emphasis added.)
    R.C. 2107.33(D)-(E).
    {¶20} Under the husband’s argument, a separated decedent that had a prior
    will would have the terms of the will revoked if they benefit the surviving spouse
    -9-
    under division (D) and such surviving spouse’s right to election would be eliminated
    by division (E), but the estate of a separated decedent without a will or with a will
    made after separation that excludes the surviving spouse would be subject to
    election, even where the terms of the separation agreements used in the opposing
    examples are identical. Although not directly on point, these statutory provisions
    support our conclusion that the proper rule in this case is that where spouses actually
    separate, a legal separation agreement which intends to fully and finally settle their
    prospective property rights will revoke a surviving spouse’s right to elect against the
    will unless the agreement expressly provides otherwise.
    {¶21} Here, the separation agreement provided for the division of prospective
    property rights in the monthly checks they receive. In fact, it provided the wife with
    the right to receive the husband’s half of the checks upon his death over the claims of
    his estate. This supports a conclusion that other language in the agreement waived
    the right to elect against the will, because this provision is the only exception to the
    general language providing for the elimination of all benefits usually conferred by
    virtue of the marital relationship. Regarding that other language, the separation entry
    and agreement specifically stated that the parties:
    do settle and determine and hereby provide for present and future
    spousal support, the division of all property owned by the parties or
    either of them, real or personal, the payment of all liabilities of the
    parties or either of them, and all other benefits and privileges conferred
    -10-
    and all obligations imposed on either of the parties by virtue of their
    marital relationship.
    {¶22} The right to elect against a will is one of the “benefits and privileges
    conferred * * * by virtue of their marital relationship.” As such, we conclude that the
    parties intended their separation agreement to fully and finally settle their prospective
    property rights in the property of the other, and thus, the right to elect against the will
    has been waived by the husband.
    {¶23} Judgment affirmed.
    Waite, P.J., concurs.
    DeGenaro, J., concurs.
    

Document Info

Docket Number: 11 MA 200

Citation Numbers: 2012 Ohio 4114

Judges: Vukovich

Filed Date: 9/7/2012

Precedential Status: Precedential

Modified Date: 4/17/2021