REL:09/19/2014

Notice: This opinion is subject to formal revision before publication in the advance

sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,

Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-

0649), of any typographical or other errors, in order that corrections may be made before

the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

SPECIAL TERM, 2014

____________________

1130486

____________________

Edward S. Ferguson V

v.

Katina Helen Hawe Critopoulos

Appeal from Mobile Probate Court

(No. 12-2556)

BOLIN, Justice.

Edward S. Ferguson V (hereinafter referred to as "Tiger")

appeals from the probate court's judgment awarding an omittedspouse share of his stepfather's estate to Katina Helen Hawe

Critopoulos.
1130486

Dimitrios Critopoulos (hereinafter "the decedent") died

on July 15, 2012. The decedent had no children. His parents

predeceased him, and he had no siblings. At the time of his

death, the decedent was married to Katina. The couple had wed

less than a year earlier on August 20, 2011. The decedent had

a valid will at the time of his death, but the will, which was

executed prior to their marriage, made no provision for

Katina. 

The decedent's first wife, Dorothy Marie Hayes

Critopoulos, had been married to the decedent for 35 years

when she predeceased him in 2009. Dorothy had three children

from a prior marriage: Crystal M. Hanawalt, Tiger, and Timothy

D. Ferguson ("Tim"). Although the decedent did not adopt

Crystal, Tiger, and Tim, it is undisputed that the three

enjoyed a parent-child relationship with the decedent. 

Crystal, Tiger, and Tim were named as the residual legatees

under the decedent's will.

On December 18, 2012, Tiger filed a petition to probate

the decedent's will in Mobile County. The executrix named in

the decedent's will was Dorothy, and Crystal was named the

successor. Crystal declined appointment. The general

2
1130486

administrator for Mobile County was then appointed to

represent the decedent's estate. 

On April 9, 2013, Katina filed a petition for an omittedspouse share of the decedent's estate pursuant to § 43-8-90,

Ala. Code 1975. On May 29, 2013, Crystal, Tiger, and Tim

filed a response to Katina's petition, in which they asserted

that the decedent had provided for Katina outside the will and

that, therefore, Katina was not entitled to an omitted-spouse

share under § 43-8-90(a). The probate court held a bench

trial, and on December 23, 2013, it entered the following

order:

"This cause came before the Court on October 16

and 17, 2013 on the Petition for Omitted Spouse

Share filed by Katina Helen Hawe Critopoulos

('Katina') and the Answer and Response to Petition

for Omitted Spouse's Share filed by Crystal M.

Hanawalt ('Crystal') and Edward S. Ferguson, [V]

('Tiger').... 

"The Decedent, Dimitrios P. 'Jim' Critopoulos

('Decedent'), was born on November 1, 1952 in

Greece. The Decedent died in Mobile County, Alabama,

on July 15, 2012. The Decedent was 52 years old at

the time of his death. By all accounts, the

Decedent's death was not expected. At the time of

his death the Decedent was employed by the United

States Department of Labor - OSHA Division.

"The Decedent had no children. The Decedent's

parents predeceased the Decedent. The Decedent had

no siblings. At the time of his death the Decedent

3
1130486

was married to Katina. They were married on August

20, 2011. Consequently, the Decedent and Katina were

married to each other for approximately 9 months. 

"The Decedent was married for many years to

Dorothy Marie Hayes Critopoulos ('Dorothy'). Dorothy

died on July 28, 2009. Dorothy was also survived by

three children, from a relationship preceding her

relationship with the Decedent, namely: Crystal,

Tiger, and Timothy D. Ferguson ('Tim'). Crystal,

Tiger, and Tim are all living. It is undisputed that

Crystal, Tiger, and Tim enjoyed a parent-child

relationship with the Decedent both before Dorothy's

death and after Dorothy's death. However, the

Decedent's relationship with Tim was strained at the

time of the Decedent's death. The Decedent did not

adopt Crystal, Tiger, and Tim.

"The Decedent owned two residences at the time

of his death: (1) the residence located [on]

Baratara Drive in Chickasaw ('Baratara Property'),

and (2) the residence located [on] East Third Street

in Chickasaw ('Third Street Property'). The Decedent

and Katina resided in the Baratara Property at the

time of the Decedent's death and Tim resided in the

Third Street Property. 

"It is undisputed that the Decedent was

contemplating the formulation and execution of a new

last will and testament at the time of the

Decedent's death. A new last will and testament was

not finalized because of the Decedent's indecision

about the Third Street Property and matters relating

to Tim. It is also noteworthy that all of the

parties agree that the Decedent was an intelligent

person. 

"Katina returned to California after the

Decedent's death. Katina currently resides in

California.

"Decedent's Last Will and Testament

4
1130486

"On September 27, 2002, the Decedent made and

published his last will and testament ('Will'). The

Will was admitted to probate by the Court on

February 4, 2013. Frank H. Kruse, Esq. ('Kruse'),

General Administrator for Mobile County, was

appointed as the personal representative of the

Decedent's estate. Letters of Administration on the

Annexed Will were issued to Kruse on March 1, 2013.

"The Will provides in pertinent part as follows: 

"'FOUR 

"'Provided that she survive me, I

GIVE, DEVISE and BEQUEATH my residential

homeplace, (including the contents and 

furnishings therein), all real property

wheresoever situated, all motor vehicles

(including any automobiles, trucks, boats,

all terrain vehicles), and all cash assets

(including but not limited to stocks,

bonds, certificates of deposits, individual

retirement accounts, thrift accounts,

savings accounts, checking accounts, and

cash on hand) to my wife, DOROTHY MARIE

CRITOPOULOS.

"'FIVE 

"In the event that my wife, DOROTHY

MARIE CRITOPOULOS, shall not survive me,

then to my stepchildren, namely, CRYSTAL

MARIE COLLINS, EDWARD S. FERGUSON, [V], AND

TIMOTHY D. FERGUSON, I give, devise and

bequeath the following: my residential

homeplace, (including the contents and

furnishings therein), all real property

wheresoever situated, all motor vehicles

(including any automobiles, trucks, boats,

all terrain vehicles), and all cash assets

(including but not limited to stocks,

bonds, certificates of deposits, individual

5
1130486

retirement accounts, thrift accounts,

savings accounts, checking accounts, and

cash on hand) in equal shares to share and

share alike; if any of my stepchildren

predecease me, their share shall go to

their children per stirpes. 

"'In order for a designated

beneficiary to be deemed to have survived

me, said person must survive me by more

than thirty (30) days.' 

"Decedent's Relationship With Katina

"The Decedent first met Katina during Dorothy's

lifetime. It is undisputed that, approximately 12

years prior to his death, the Decedent had a

romantic extramarital relationship with Katina,

while the Decedent was married to Dorothy. No

testimony was presented as to whether Dorothy was

aware of the Decedent's relationship with Katina.

Tiger and Crystal didn't learn of the relationship

until Katina moved to Mobile. 

"The Decedent and Katina had contact with each

other following Dorothy's death. Katina came from

California to Mobile, Alabama, with all of her

personal belongings in her suitcase. The Decedent

purchased Katina's airline ticket to travel from

California to Mobile. According to Bryan Robert

Smith-Angel ('Smith'), the Decedent's best friend,

Katina told the Decedent that Katina would not come

to Mobile unless they got married. 

"The Decedent considered having a prenuptial

contract with Katina and deliberately chose not to

pursue such. The Decedent and Katina married on

August 20, 2011. During the marriage the Decedent

purchased a motor vehicle for Katina. The Decedent

also paid the apartment rental for Katina's

daughter, who resided in California after Katina

moved to Mobile. 

6
1130486

"Decedent's Estate

"As noted earlier, the Decedent was gainfully

employed in the United States Civil Service at the

time of the Decedent's death. At the time of his

death, the Decedent owned the following property

with the indicated estimated value:

"Property Estimated

Value

"Baratara Property $l52,500.00 

"Third Street Property 80,500.00

"'Greek Bonds' held by HSBC unknown1

"U.S. Savings Bonds 16,700.00

"Regions Bank account 89,342.81

"Money Concepts Account 45,000.00

plus2

"E-Trade Account transferred

to estate

account

(Regions) 

"Thrift Savings Plan Approximately

$422,170.00

3

"Household items, furniture $6,280.00

4

and furnishings at Baratara

Property

"Fine jewelry $4,671.00

"Watches $687.00

"Firearms $4,000.00

5

7
1130486

"2007 Chevrolet Tahoe $23,500.00

[sport-utility vehicle]

"Excluding the value of the Thrift Savings Plan

and the Money Concepts Account, the value of the

Decedent's estate at the time of the Decedent's

death was approximately $378,200. Of said amount,

$233,000 is attributed to the estimated value of two

residences. The real estate market in the Mobile

area has been and remains depressed. The real estate

holdings comprise 61.6 percent of the Decedent's

total estate.

"Additionally, the Decedent had the following

life insurance policies: 

"Policy Estimated Value

"FEGLl (administered approx. $ 542,200.006

by MetLife) 

"Army Aviation Center FCU $2,061.78

7

"ASC $100,000.00

8

"Finally, the Decedent maintained a 'trust

account' for one of Crystal's daughters, which had

approximately $8,000 at the time of the Decedent's

death.

"Katina's Separate Estate at Time of Marriage

"At the time of Katina's marriage to the

Decedent, Katina had no savings and was 'working

paycheck to paycheck.' Further, Katina owned no real

estate. Several months before the Decedent died,

Katina worked. Katina had a separate checking

account. 

"What Katina Has Received as a Result of the

Death of the Decedent

8
1130486

"At the time of the Decedent's death, the

Decedent and Katina had a joint checking account

with rights of survivorship. Katina also had a

separate checking account. Katina received the funds

in these checking accounts. The Decedent executed

the appropriate documentation prior to his death to

facilitate Katina receiving: (1) a share

($211,084.85) of the Decedent's 'Thrift Savings

Plan' benefits; (2) fifty (50%) share ($271,101.02)

of the Decedent's life insurance benefits (through

the 'FEGLI' program administered by MetLife); (3)

$75,517.98 of lump sum death benefits (reduced

approximately $ 15,000.00 for anticipated federal

taxes); and (4) $ 2,061.78 of life insurance through

the Army Aviation Center Federal Credit Union.

Katina also received $3,325.59 from the United

States Government (the Decedent's employer) for

unpaid compensation due the Decedent. Finally,

Katina receives a monthly stipend of $532.37 as the

Decedent's surviving spouse. The lump sum payments

to Katina total $548,091.22. 

"What Dorothy's Children Have Received as a

Result of the Death of the Decedent

"Crystal and Tiger each received 25 percent

shares of the Decedent's Thrift Savings Plan and

life insurance benefits (through the 'FEGLI' program

administered by MetLife). Tiger and Crystal were

also the death beneficiaries of the Money Concepts

Account. Tiger, Crystal, and Tim were the named

beneficiaries of the ASC insurance policy. Tiger

testified that Tiger had received the policy assets

as a result of the Decedent's death: 

"Thrift Savings - $105,542.42 

"FEGLI (MetLife) - $135,550.51 

"Money Concepts - $45,000.00 

"ASC Insurance Policy - 1/3 of $100,000 

9
1130486

"Altogether, Dorothy's children have collectively

received approximately $672,186.00 a result of the

Decedent's death.9

"Decedent's Comments Regarding Disposition of

Decedent's Estate

"When Dorothy died, title to most, if not all,

of the Decedent's and Dorothy's assets were held

joint with rights of survivorship or in one of the

spouse's name with the other spouse individual as

the beneficiary upon death. The Decedent was the

beneficiary of Dorothy's individual retirement

account, with Dorothy's children named as contingent

beneficiaries. The Decedent received the assets of

Dorothy's individual retirement account upon

Dorothy's death. 

"Tiger testified that the Decedent told Tiger

before the Decedent and Katina married that: (1) the

Decedent and Katina planned to get married, (2) any

property the Decedent acquired before his marriage

to Katina would be devised by the Decedent to Tiger,

Crystal, and Tim upon the Decedent's death, and (3)

any property the Decedent acquired after his

marriage to Katina would be devised to Katina. After

the Decedent married Katina, Tiger's relationship

with the Decedent continued. There were periodic

visits. According to Tiger, on one such visit the

Decedent told Tiger that the Decedent intended to

make financial provisions for Katina, although he

(the Decedent) did not know how he would do so. 

"Smith testified that the Decedent told Smith

that he (the Decedent) planned to formulate a new

last will and testament that would provide for

Katina, Tiger, and Crystal. According to Smith the

Decedent wanted to provide for Katina because 'she

was his wife and he loved her.' 

"Smith testified that approximately three to

five months preceding the Decedent's death the

10
1130486

Decedent and Smith had a conversation about a new

estate plan the Decedent proposed formulating. Smith

testified that in said conversation the Decedent

stated that the Decedent wanted to: (1) devise the

Baratara Property to Katina; (2) devise the Third

Avenue residence to Tiger and Crystal (in order to

afford Tim a place to reside in fulfillment of a

promise the Decedent made to Dorothy before her

death); (3) name Katina as the beneficiary of an

existing life insurance policy where Dorothy was the

named beneficiary; and (4) name Katina, Tiger, and

Crystal as the beneficiaries of the Decedent's

'government life insurance' and other life insurance

on the Decedent's life. Smith testified that he told

the Decedent that he (Smith) objected to the

Decedent's proposal, saying 'you can't do that to

the kids -- you need to split the property equally

amongst them.' 

"Crystal and the Decedent conversed about a

month prior to the Decedent marrying Katina, and the

Decedent stated that Katina was not interested in

the Decedent's money. Crystal also testified that

following the Decedent's marriage to Katina, Crystal

and the Decedent spoke several times regarding the

Third Street residence. Crystal testified that the

Decedent told Crystal that the Decedent had promised

Dorothy that Tim would have a place to live. The

Decedent was afraid that Tim would lose the Third

Street residence if it was deeded outright to Tim

and the Decedent wanted to give the house to Crystal

with the understanding that Tim could reside in the

residence. Crystal further testified that she

objected to the Decedent devising the Third Street

residence to Crystal because she did not want the

responsibility. Crystal testified that she had no

discussions with the Decedent regarding the

Decedent's other assets. Finally, about a month

before the Decedent died, Crystal testified that the

Decedent told Crystal with reference to Katina that

'I will make sure she's taken care of if something

happens to me.'

11
1130486

"Katina testified that the Decedent told her

that upon his death the Decedent desired: (1) Katina

receive the Baratara Property; (2) Tiger and Crystal

receive the Third Street Property, with Tim

continuing to reside in said residence; (3) other

financial arrangements would be made to provide

compensation to Tiger and Crystal because Dorothy

had lived in and helped acquire the Baratara

Property; and (4) all of the Decedent's remaining

assets with the exception of various firearms and

household furnishings and personal property

purchased prior to the Decedent and Katina being

married, would be devised to Katina. 

"Events Following Decedent's Death

"There was electronic mail ('e-mail') dialogue

between Katina and Crystal following the Decedent's

death regarding the disposition of the Decedent's

estate. In an e-mail message dated August 11, 2012

(approximately one month following the Decedent's

death), Katina related to Crystal that she (Katina)

knew 'Jim's [the Decedent] wishes ... and I'm

willing to execute them. This way I can be the "fall

guy" with Tim and it not interfere with your sibling

relationship.' This e-mail message was sent days

before Katina and Tiger met with Charles Hicks

('Hicks'), a lawyer in Mobile, Alabama. 

"Hicks met with Katina on four (4) or five (5)

occasions to discuss the Will. Katina, Tiger, and

Smith were physically present at the initial meeting

and Crystal participated by telephone. At the

initial meeting, the persons present discussed the

Decedent's intentions and wishes. At said meeting

Katina indicated that the Decedent wanted the bulk

of his estate to go to Katina, Crystal, and Tiger.

Katina further indicated that the Decedent had had

a falling out with his other stepson (by deduction

this was Tim). Katina stated that the Decedent's

wishes were for Tim to receive nothing of the

Decedent's estate. 

12
1130486

"At the meeting with Hicks, the parties

attempted to reach an agreement regarding the

distribution of the Decedent's assets in a manner

that differed from the provisions of the Will (Tim

would receive less than the others). Hicks testified

that the parties recognized that any agreement to

distribute the Decedent's assets in a manner

different from what the Will provided would require

Tim's agreement. Hicks prepared and filed with the

Court the petition to probate the Will. As noted

above, the Will was admitted to probate without

objection. There were several follow-up

conversations between Hicks and Katina and Tiger.

The parties could not reach an agreement. Based upon

comments made in the subsequent conversations, Hicks

determined that he had a conflict of interest and

Hicks withdrew from representation of any party in

interest in this cause.

"In a document dated February 1, 2013, that was

presented to Tiger and Crystal, Katina stated that

she expected the following: 

"1. 50 percent of the following assets: 

"A. Baratara Property

"B. Third Street Property

"C. U.S. Savings Bonds

"D. All accounts administered by Money Concepts

"E. Scottrade accounts

"F. E Trade accounts

"G. 2007 Chevy Tahoe

"H. All accounts held at HSBC in Greece

"2. One firearm the Decedent purchased shortly

before his death

"3. The household furnishings purchased while the

Decedent and Katina were a couple (identified as the

living room furniture, informal dining set, bed,

television, wedding gifts, and Greek language

recordings).

13
1130486

"Posture of Decedent's Estate Proceeding

"On April 9, 2013, Katina filed her 'Petition

for an Omitted Spouse's Share Pursuant to Ala. Code

1975 § 43-8-90, or, in the Alternative for Further

Relief.' In her prayer for relief Katina requested

that the Court determine that Katina was the

Decedent's omitted spouse. Alternatively, Katina

requested that the Court award Katina her elective

share pursuant to Ala. Code 1975, § 43-8-70, and the

allowance provided in Ala. Code 1975, §§ 43-8-110,

111 and 112. Later, Katina withdrew her request for

an elective share.

" 

" The parties apparently all agree that the 1

value of the Greek bonds is questionable.

" This account was payable on death to Tiger and 2

Crystal. Tiger testified that he had received

$45,000 as a result of this asset. The amount

Crystal received is unknown.

" The pay-on-death beneficiaries of the Plan 3

were Katina (50 percent), Tiger (25 percent) and

Crystal (25 percent).

" According to her February 1, 2013, statement 4

(see below), Katina has possession of the living

room furniture, informal dining set, bed,

television, wedding gifts and Greek language

recordings that were in the Baratara Property. It

is uncertain as to whether these assets are included

in the Personal Representative's inventories.

" According to her February 1, 2013, statement, 5

Katina has possession of one firearm (described as

being a 'handgun'). It is uncertain as to whether

this firearm is included in the Personal

Representative's inventories.

14
1130486

" The pay-on-death beneficiaries of the policy

6

were Katina (50 percent), Tiger (25 percent) and

Crystal (25 percent).

" Katina was the beneficiary of this policy. 7

" The pay-on-death beneficiaries of the policy 8

were Tiger, Crystal and Tim (one-third each).

" Computation presumes that Crystal also 9

received $45,000 as a result of being a 50 percent

death beneficiary of the Money Concepts Account."

The probate court went on to discuss the applicable

caselaw regarding § 43-8-90. The probate court listed

several points a court is to consider in making omitted-spouse

determinations. The probate court noted that § 43-8-90

provides that an omitted spouse shall receive the same share

of the estate he or she would have received if the decedent

had left no will. The intestate share for a surviving spouse

is set out in § 42-8-41, Ala. Code 1975, and the probate court

noted that because the decedent had no biological children and

no surviving parents, Katina would be entitled to all of the

decedent's intestate estate.

The probate court concluded:

"In the instant cause, Tiger and Crystal have

the burden of proving that the transfers by the

Decedent to or for the benefit of Katina were

intended to be in lieu of a testamentary provision.

As noted above, an indication of such can be

15
1130486

obtained by comparing the value of the probate

estate to the value of the property the respective

interested parties have received or will receive. 

Tiger and Crystal provided such information to the

Court. However, the Alabama appellate cases

discussed herein and the decisions of other states'

appellate courts cited with approval by the Alabama

Supreme Court note that there are other factors to

be considered as well by a trial court when trying

to determine a testator's intent in this type of

matter.

"Tiger and Crystal provided no other evidence to

support their position that at the time the Decedent

made the beneficiary designations that made Katina

a beneficiary, the Decedent intended by those

designations and actions that Katina receive said

benefits in lieu of a testamentary provision.

"Further, the actual documents reflecting the

beneficiary designations for the Decedent's Thrift

Savings Plan and FEGLI life insurance benefits were

not introduced into evidence. Consequently, the

Court is unable to consider the timing of said

actions by the Decedent in relation to the

Decedent's statements to Tiger, Crystal, Smith, and

Katina that the Decedent wanted to revise the Will

and update his estate plan. There was no testimony

that the Decedent told anyone that he was making the

beneficiary designations in question that benefited

Katina in lieu of a testamentary provision in favor

of Katina.

"Testimony was presented that the Decedent

considered having a prenuptial contract with Katina

and deliberately chose not to pursue such. The

deliberate act of not having a prenuptial contract

is noteworthy in the instant cause.

"Tiger and Crystal cited Wester [v. Baker, 675

So. 2d 447 (Ala. Civ. App. 1996),] in support of

their position. As noted above, in Wester was

16
1130486

testimony that the decedent stated to a

disinterested person that the decedent was pleased

with her last will and testament the way it had been

drafted and she would leave it that way. Wester, 615

So. 2d at 448. As noted by Katina, it is clear that

in Wester the decedent did not plan to change the

decedent's last will and testament. The undisputed

testimony in this cause is the exact opposite: (1)

the Decedent was not happy with the Will; (2) the

Decedent desired to change the Will; and (3) the

Decedent was struggling with how to provide for

Katina, address his testamentary provision for Tim,

and address the Third Street Property.11

"The Court is cognizant that: (1) the purpose of

the omitted spouse statute is to preserve the

remainder of the will, while still providing for the

omitted spouse; (2) by ruling that Katina is an

omitted spouse, coupled with the provisions of Ala.

Code 1975, § 43-8-41, practically speaking, Tiger,

Crystal, and Tim will not participate as

beneficiaries of the Decedent's probate estate and

Katina will be the only beneficiary of the

Decedent's probate estate; and (3) Katina will

receive more than she acknowledged that the Decedent

intended for her to receive upon his death. 

"At first blush, this result appears harsh.

However, it must be remembered that: (1) surviving

spouses are accorded special rights in the law; (2) 12

children of decedents can be and are frequently 13

disinherited by their parents; (3) adult children 14

of a decedent are not accorded any special status in

this aspect of probate law; and (4) the Alabama

Legislature specifies Alabama's statutory-positive

law, not the courts. Notwithstanding such, it must

also be noted that Tiger, Crystal, and Tim have all

received substantial amounts as a result of the

Decedent's death, which the Decedent was not legally

required to provide to them. Finally, it must be

remembered that this Court (and all courts) make

rulings based upon the law, not what a particular

17
1130486

person in a position to make a decision likes or

considers moral. Because of the facts in this case,

Katina will receive more of the Decedent's estate

than she acknowledged the Decedent desired for her

to receive. Such is a moral matter for Katina to

ponder and act as her conscience dictates.

"Upon consideration of demeanor of all of the

witnesses, the documentary evidence introduced and

applicable law, the Court is of the opinion, for the

reasons stated herein, that Tiger and Crystal failed

to meet their burden of proving that the transfers

by the Decedent to or for the benefit of Katina were

intended to be lieu of a testamentary provision. 

"Upon consideration of demeanor of all the

witnesses, the documentary evidence introduced and

applicable law, the Court is of the opinion, for the

reasons stated herein, that Katina is an omitted

spouse in this cause and that she should be accorded

such status in the Decedent's estate.

"________________

" The Court notes that Tim is in possession of 11

the Third Street Property. There was no evidence

that the Decedent ever told Tim or any other party

in interest that the Decedent was conveying or

gifting the Third Street Property to Tim. And there

is no specific devise of the Third Street Property

to Tim in the Will. Consequently, the Court found

no legal bases to rule that Tim now owns the Third

Street Property or to declare that Tim would receive

the Third Street Property. See also, Ala. Code

1975, §§ 8-9-2 and 35-4-20.

" Surviving spouses' special status is 12

reflected in allowances, exemptions available to

them, along with the right to elect against a will

or to assert rights as an omitted spouse, as was

done by Katina in the instant cause.

18
1130486

" In the instant cause it is undisputed that 13

Tiger, Crystal, and Tim are not the Decedent's

children. The only basis for their having an

interest in the Decedent's estate is their being

named beneficiaries in the Will.

" It is very common for married persons with 14

children to provide in their last will and testament

that their entire estate will be devised to their

surviving spouse upon their death, even if there are

children of said marriage. Typically when there is

a second spouse and children of a prior

relationship, testators make testamentary provisions

for their surviving spouse or otherwise they have a

prenuptial contract." 

Tiger filed a timely appeal.

 

Standard of Review

Because the probate court received evidence ore tenus,

our review is governed by the following principles:

"'"'[W]hen a trial court hears ore tenus

testimony, its findings on disputed facts are

presumed correct and its judgment based on those

findings will not be reversed unless the judgment is

palpably erroneous or manifestly unjust.'"' Water

Works & Sanitary Sewer Bd. v. Parks, 977 So. 2d 440,

443 (Ala. 2007)(quoting Fadalla v. Fadalla, 929 So.

2d 429, 433 (Ala. 2005), quoting in turn Philpot v.

State, 843 So. 2d 122, 125 (Ala. 2002)). '"The

presumption of correctness, however, is rebuttable

and may be overcome where there is insufficient

evidence presented to the trial court to sustain its

judgment."' Waltman v. Rowell, 913 So. 2d 1083, 1086

(Ala. 2005)(quoting Dennis v. Dobbs, 474 So. 2d 77,

79 (Ala. 1985)). 'Additionally, the ore tenus rule

does not extend to cloak with a presumption of

correctness a trial judge's conclusions of law or

19
1130486

the incorrect application of law to the facts.'

Waltman v. Rowell, 913 So. 2d at 1086."

Retail Developers of Alabama, LLC v. East Gadsden Golf Club,

Inc., 985 So. 2d 924, 929 (Ala. 2007).

Discussion

Section 43-8-90 provides:

"(a) If a testator fails to provide by will for

his surviving spouse who married the testator after

the execution of the will, the omitted spouse shall

receive the same share of the estate he would have

received if the decedent left no will unless it

appears from the will that the omission was

intentional or the testator provided for the spouse

by transfer outside the will and the intent that the

transfer be in lieu of a testamentary provision be

reasonably proven.

"(b) In satisfying a share provided by this

section, the devises made by the will abate as

provided in section 43-8-76[, Ala. Code 1975]."

In Hellums v. Reinhardt, 567 So. 2d 274 (Ala. 1990), this

Court addressed, for the first time, the interpretation of §

43-8-90 and the burden of proof in actions brought pursuant to

the omitted-spouse statute. We recognized that § 43-8-90 was

based upon the Uniform Probate Code ("UPC") drafted by the

National Conference of Commissioners on Uniform State Laws: 

"The purpose of § 43–8–90, which is based on UPC

§ 2–301, is to remedy the unintentional

disinheritance of a spouse when the decedent's will

was executed before their marriage. The adoption of

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that section reflects 'the view that the intestate

share of the spouse is what the decedent would want

the spouse to have if he had thought about the

relationship of his old will to his new situation.' 

Commentary to § 43–8–90."

567 So. 2d at 277.

The Hellums Court looked to other states that had adopted

versions of the UPC's omitted-spouse provision. The Court

concluded that the burden of proof that must be met is that

once the surviving spouse proves that he or she was omitted

from the will, the burden of proof then shifts to the

proponent of the will to show that the testator provided for

the surviving spouse by inter vivos transfers and that those

transfers were intended to be in lieu of a testamentary

provision. This interpretation was consistent with the courts

in North Dakota and Arizona as set out in In re Estate of

Knudsen, 342 N.W.2d 387 (N.D. 1984), and In re Estate of

Beaman, 119 Ariz. 614, 583 P.2d 270 (Ariz. Ct. App. 1978),

respectively. The Court stated:

"Shifting the burden to the proponent of the will to

prove that the testator provided for the spouse

outside the will is most consistent with the terms

of the statute, which requires that the will make

apparent an intent to omit the future spouse or that

the testator's intent to substitute an inter vivos

transfer for a testamentary provision be reasonably

proven."

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567 So. 2d at 277. The Court went on to address inter vivos

transfers that have been held to be in lieu of testamentary

provisions, such as the opening of joint-tenancy checking

accounts and savings accounts and the assignment of retirement

or insurance benefits as set out in In re Estate of Taggart,

95 N.M. 117, 619 P.2d 562 (N.M. Ct. App. 1980). The Court

also noted other transfers that would satisfy this

requirement, as set out in Annot., 11 A.L.R. 4th 1213 (1982).

In Hellums, the decedent executed her will on June 29,

1987. She married Hellums on May 20, 1988, and remained

married to him until her death on December 1, 1988. No

evidence was presented that the decedent gave Hellums any

inter vivos gifts, and the decedent's will did not contain any

language indicating that the decedent intended to omit a

future spouse or restrict a future spouse's inheritance. 

Holding that the probate court had erred in finding that

Hellums was not entitled to an intestate share as an omitted

spouse, this Court reversed the judgment. 

In Becraft v. Becraft, 628 So. 2d 404 (Ala. 1993), the

widow petitioned for an omitted-spouse share of the decedent's

estate. The widow showed her eligibility as an omitted spouse

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under § 43-8-90 by presenting evidence indicating that she was

married to the decedent until his death seven months after the

marriage. The decedent had a will at the time of his death.

However, that will had been written years earlier and left his

entire estate to Barbara, his wife at time the will was

executed. The decedent's will also provided that, if Barbara

predeceased him, the estate would go their children. It was

undisputed that the decedent made the widow the beneficiary of

a $25,000 life-insurance policy. The issue was whether the

children, as proponents of the will, reasonably proved that

the decedent intended the insurance proceeds to be in lieu of

a testamentary provision. The probate court concluded that the

children had not carried their burden of showing that the

insurance policy was given in lieu of a testamentary

provision. The children's testimony that the decedent

intended his estate to go them was contradicted by the widow's

testimony. The probate court also considered the

circumstances surrounding the decedent's marriage and death.

The probate court also considered the amount of the insurance

proceeds and the size of the intestate share. We affirmed the

probate court's judgment. We noted that the size of an inter

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vivos gift or one that passes outside the estate in relation

to the intestate share is relevant to the question whether the

gift was intended to be in lieu of a testamentary provision

but that there is no requirement that an inter vivos or extraestate gift be equal to or approximately the same as an

intestate share to qualify as a transfer in lieu of a

testamentary provision. 

In Kellum v. Dutton, 706 So. 2d 1179 (Ala. 1997), the

husband filed a petition against his deceased wife's estate,

seeking a share as an omitted spouse. In 1988, the wife had

executed a will leaving her residual estate to her nephew and

his wife. On December 13, 1991, the parties entered into a

prenuptial agreement, conditioned upon their future marriage, 

whereby each waived and released "all rights" to the other's

estate. On December 14, 1991, the parties married. In 1994,

the wife died. The husband was not entitled to a share of the

wife's estate as a surviving spouse omitted from the wife's

1988 will, which predated their marriage. The prenuptial

agreement was a vehicle of transfer, outside the will, and

constituted sufficient proof of the wife's intent that that

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inter vivos transfer be in lieu of making provisions for the

husband in her will. 

The Court of Civil Appeals in Wester v. Baker, 675 So. 2d 

447 (Ala. Civ. App. 1996), upheld the probate court's holding

that the husband was not entitled to a share as an omitted

spouse. The wife had executed a will in 1972, naming her

niece as the sole beneficiary and the executrix of her will.

The wife married the husband in 1973. In 1974, they purchased

real property in joint tenancy with right of survivorship, and

they lived on this property. The wife had another parcel of

property. The wife died in 1994. The husband petitioned the

probate court to receive a share of the wife's estate as an

omitted spouse. The niece, as the proponent of the will,

presented evidence from one of the wife's sisters indicating

that she and the wife had discussed the will about a year

before the wife's death and that the wife had helped the

husband purchase the house so that he would have a home of his

own and so that she would not have to change her will. There

was also testimony from the wife's sister-in-law that the wife

told her that the husband had been pestering her to change the

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will but that she was pleased with the will and would leave it

the way it was.

The purpose of § 43-8-90 is to avoid an unintentional

disinheritance of the spouse of a testator who had executed a

will prior to the parties' marriage. It serves to give effect

to the probable intent of the testator and protects the

surviving spouse. The operative effect of § 43-8-90 is to

carve out an intestate share as a vehicle to carry out the

probable intent of the testator and to protect the omitted

spouse. Section 43-8-90 goes on to provide two exceptions to

allowing an omitted spouse an intestate share: (1) if it

appears from the will that the omission of the surviving

spouse was intentional or (2) if the testator provided for the

surviving spouse with transfers outside the will with the

intent that those transfers were in lieu of a provision in the

will. If either exception exists, the surviving spouse is not

entitled to a share as an omitted spouse. 

Based on Hellums and its progeny, and the cases this

Court cited in Hellums, we discern the following regarding a

determination whether the testator provided for the surviving

spouse outside the will: (1) inter vivos transfers that have

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been held to be "transfers" in lieu of testamentary provisions

include joint-tenancy checking and savings accounts and

assignments of retirement or insurance benefits; (2) the size

of the inter vivos transfer or a transfer that passes outside

the estate in relation to the intestate share may be a

relevant comparison, but there is no requirement that the

inter vivos or extra-estate gift be approximately the same as

the intestate share in order to qualify as a transfer in lieu

of a testamentary provision; (3) a valid prenuptial agreement

is a "transfer" outside the will and constitutes sufficient

proof of intent that that transfer is in lieu of a

testamentary provision; (4) statements made by the testator

concerning transfers outside the will may be relevant to show

the testator's intent that the transfers be in lieu of a

testamentary provision; (5) statements made by the testator

concerning the old will in relation to the new marriage may be

relevant to show that the testator reexamined the will and did

not change the will; (6)the separate estate of the surviving

spouse may be relevant; (7) the duration of the marriage may

be relevant; and (8) the beneficiaries under the will may be

relevant. 

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Because § 43-8-90 is designed to give effect to the

probable intent of the testator and to protect the surviving

spouse, the above-listed relevant considerations or factors

are not exclusive. Other factors may also be considered. The

factors relevant in one case may not be relevant in another.

These factors are not a mechanical checklist to reasonably

prove the testator's intent that the transfer be in lieu of a

testamentary provision, because the circumstances and facts

vary from case to case in probate proceedings such as this.

With this in mind, we turn to the present case. It is

undisputed that the decedent executed his will in 2002 and

that he and Katina married in 2011. Nothing in the decedent's

will indicates that the omission of Katina from the will was

intentional; therefore, the first exception to the omittedspouse share is not applicable. Now, we must determine 1

whether the probate court correctly held that the second

exception was not met, i.e., that Tiger failed to reasonably

Section 43-8-90 is based on § 2-301 of the UPC. Since 1

the adoption of § 43-8-90, § 2-301 has been amended to provide

for the following exception to the omitted-spouse share: If

"it appears from the will or other evidence that the will was

made in contemplation of the testator's marriage to the

surviving spouse," then the surviving spouse is not entitled

to the omitted-spouse share. (Emphasis added.) 

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prove that the decedent provided for Katina outside the will

and that those transfers were in lieu of a testamentary

provision.

The decedent died in 2012, without changing his will.

The decedent had no children, his parents had predeceased him,

and he had no surviving siblings. Because § 43-8-90 provides

that an omitted-spouse share is what the omitted spouse would

have received if the decedent had had no will, then under the

intestate statute, § 43-8-41(1), Ala. Code 1975, Katina would

receive the decedent's entire estate. The beneficiaries under

the will are Crystal, Tiger, and Tim. It is undisputed that

the decedent had a "parent/child" relationship with his

stepchildren before Dorothy's death and that he remained

close to Crystal and Tiger after Dorothy's death. When

Dorothy predeceased the decedent, all of their assets were

held jointly with rights of survivorship. The decedent was

the beneficiary of Dorothy's retirement accounts. 

Katina and the decedent had an affair during the

decedent's marriage to Dorothy. Katina refused to come to

Alabama unless she and the decedent married. Katina had no

separate estate; she was living paycheck to paycheck before

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she married the decedent. Katina and the decedent were

married for less than a year before his death. 

The decedent provided Katina with inter vivos transfers

and transfers outside the will, including checking accounts,

life insurance, and retirement benefits. Those transfers

amount to lump-sum payments totaling approximately $548,000

and a monthly stipend for the rest of her life in the amount

of $900 in pension benefits. Crystal, Tiger, and Tim all 2

received inter vivos transfers and transfers outside the will.

Crystal and Tiger each received approximately $319,000, and

Tim received $33,000. The trial court valued the decedent's

probate estate at $378,200 with $233,000 attributed to two

residences. The probate court valued the decedent's property

located on Baratara Drive at $152,500, although the house

actually sold for $77,000 after the decedent's death. 

There was testimony that the decedent was considering

changing his will after his marriage to Katina. The decedent

told Katina and his best friend that he was considering

This amount differs from the amount shown by the probate 2

court ($532.37) because the probate court did not include the

health-insurance premium that is deducted from the pension

benefit. 

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leaving the property on Third Avenue to Tim to fulfil a

promise to Dorothy to provide a house for Tim. The decedent

was also considering leaving the property on Baratara Drive to

Katina in order for her to have a place to live because she

had moved to Alabama to marry the deceased. The decedent

could not decide what to do, and he did not change his will.

The decedent told Crystal and Katina that he was going to

provide for Katina. Although the probate court states that

"by all accounts " the decedent died unexpectedly, there was

testimony from Crystal that the decedent was sick and had been

hiding his illness. There was also testimony from the

decedent's best friend that the decedent was on oxygen the

last few months of his life.

The probate court focuses on the fact that the decedent

never stated that the transfers he made to Katina were in lieu

of changing his will. Although such testimony was present in

Wester, supra, and would have been helpful here, it is not the

only evidence relevant to show the testator's intent. Here,

the decedent, during his brief marriage to Katina, changed

beneficiaries on his retirement accounts and insurance

policies. He was considering changing his will, but did not

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do so. In short, he considered his old will in relation to

his new marriage. He also substantially provided for Katina;

Katina acknowledges that, if she received the intestate share,

she would be receiving more than the decedent intended her to

have. 

The probate court focuses on the fact that Tiger

presented no evidence of the precise dates when the decedent

changed the beneficiaries of his retirement accounts and lifeinsurance policies. In In re Taggart's Estate, supra, the New

Mexico court noted that the intent of the decedent at the time

of the transfers controlled. In that case, there was an issue

as to whether the transfers to the wife were to provide her

with a convenient method for managing the couple's expenses or

whether the transfers were for the wife's benefit. The

decedent in Taggart made the transfers to his wife shortly

after their marriage, and there was testimony that the

decedent stated that he wanted to "protect" the wife. The

court stated that it was not material that the transfers were

later used by the wife for day-to-day expenses. The Taggart

court went on to discuss whether the transfers were in lieu of

a testamentary provision and considered the facts that the

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marriage was brief, that the inter vivos transfers to the

widow represented 20 percent of the decedent's total estate,

that the widow was also receiving monthly retirement benefits

as a result of the marriage, and that there was testimony that

the decedent had wanted to provide for his former mother-inlaw, who was the beneficiary under the will. The court held

that the transfers were in lieu of a testamentary provision.

Although the precise timing of a transfer and the type of

transfer may be relevant in some cases to show the intent of

the decedent at the time a transfer is made as to whether it

was a "transfer" under the omitted-spouse statute or whether

it was for some other purpose, it is undisputed in the present

case that the transfers were transfers outside the will under

§ 43-8-90. The issue in this case was whether those transfers

were in lieu of a testamentary provision. Also, no one

disputes that the decedent changed the beneficiaries to his

retirement and insurance policies during his brief marriage to

Katina.

In the present case, the amount of the transfers made

during the marriage, along with the testimony that the

decedent considered the terms of his will, the fact that

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Katina was not included in the will, the fact that the

decedent did not change his will, and the fact that the will

ultimately benefited Dorothy's children provide reasonable

proof to satisfy Tiger's burden of proving an exception to the

omitted-spouse share under the facts of this case. We are

cognizant of our standard of review, given that the probate

court heard ore tenus evidence. However, it was the main role

of the probate court in this case to apply the law to the

largely undisputed material facts. We also are aware that

this is the first time this Court has set out any guidelines

for determining whether a transfer outside a will was in lieu

of a testamentary provision, and we applaud the probate court

for its well-written order. 

Based on the foregoing, the judgment of the probate court

is reversed, and the cause is remanded for proceedings

consistent with this opinion. 

REVERSED AND REMANDED.

Moore, C.J., and Murdock, Main, and Bryan, JJ., concur.

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