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

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# SUPREME COURT O F ALA BAMA

SPECI AL TE RM, 2 014

_____ _____ _____ _____ 11304 86

_____ _____ _____ _____ Edwar d S. Fergu son V

v.
Katin a Hel en Hawe Cr itopo ulos Appea l from Mob ile P robate Cou rt

(No. 12-25 56)

BOLIN , Jus tice.
Edwar d S. Fergu son V (here inaft er refer red to as "Tige r")
appea ls from the proba te court 's judgm ent award ing an omitt edspous e sha re of his stepf ather 's es tate to Ka tina Helen Hawe
Crito poulo s.11304 86

Dimit rios Crito poulo s (here inaft er "the deced ent") died

on July 15, 2012. The deced ent had no child ren. His paren ts prede cease d him , andhe h ad no sibl ings. At the t ime o f his
death , the deced ent was marri ed to Katin a. The coupl e had wed
less than a year earli er on Augus t 20, 2011. The deced ent had

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

execu ted prior to their marri age, m a d e no provi sion for
Katin a.
T h e deced ent's first wife, Dorot hy Marie Hayes
Crito poulo s, had been marri ed to the deced ent for 35 y e a rs
when she prede cease d him in 2009. Dorot hy had three child ren
from a prior marri age: Cryst al M. Hanaw alt, Tiger , and Timot hy
D. Fergu son ("Tim "). Altho ugh t h e deced ent did not adopt Cryst al, Tiger , and Tim, it is undis put e d t h a t the three enjoy ed a paren t-chi ld relat ionsh ip with the deced ent. Cryst al, Tiger , and Tim wer e named as the resid ual legat ees
under the deced ent's will

. On D e c e mber 18, 2012, Tiger filed a petit ion to proba te
the deced ent's will in Mobil e Count y. The execu trix named in
the deced ent's will was Dorot hy, and Cryst al was name d t he

succe ssor. Cryst al decli ned appoi ntmen t. T h e gener al

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admin istra tor for Mobil e Count y was then appoi nted to
repre sent the d ecede nt's estat e.
On April 9, 2013, Katin a filed a petit ion for an omitt edspous e sha re of the deced ent's esta te pu rsuan t to § 43- 8-90,
Ala. Code 1975. On May 29, 2013, Cry s t a l , T iger, and Tim
filed a respo nse to Katin a's petit ion, in which they asser ted
that the deced ent had provi ded for Katin a outsi de the will and that, there fore, Katin a was not entit led to an omitt ed-sp ouse

s hare under § 43-8- 90(a)

. The proba te court held a b e n c h
t r i a l , and on December 23, 2013, it enter ed the follo wing
order : "This cause came befor e the Court on Octob er 16 and 17 , 2 0 13 on the Petit ion for Omitt ed Spous e Share filed by Katin a Helen Hawe Crito poulo s ('K atina ') and the Answe r and Respo nse to Petit ion for Omitt ed Spous e's Share filed by Cryst al M. Hanaw alt ('Cry stal' ) and Edwar d S. Fergu son, [V] ('Tig er').
... "The Deced ent, Dimit rios P. 'Jim' Crito poulo s ( ' D ecede nt'), was born on November 1, 1952 i n Greec e. The Deced ent died in Mobil e Count y, Alaba ma, on July 15, 2012. The Deced ent was 52 years old at the time of his death
. By al l accou nts, the Deced ent's death was not expec te d
. At the time of h i s death the Deced ent was emplo yed by the Unite d State s Dep artme nt of Labo r - O SHA D ivisi on.
"The Deced ent had no child ren. The Deced en t ' s paren ts prede cease d the Deced ent. The Deced e nt had no sibli n g s . At the time of his death the Deced ent

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was marrie d to Katin a. They were marri ed on August 20, 2011. Conse quent ly, the Deced ent and Katin a were marri ed to eachothe r for appr oxima tely 9 mon ths.
"The Deced ent was marri ed for ma n y years to Dorot hy Marie Hayes Crito poulo s ('Dor othy' ). Dorot hy died on July 28, 2009. Dorot hy was also survi ved by three child ren, fr om a relat ionsh ip prece ding her relat ionsh ip with the Deced ent, namel y: Cryst al, Tiger , and Timot hy D. Fergu son ('Tim '). Cryst al, Tiger , and Tim are all livin g. It is undis puted that C rysta l, Tiger , and Tim enjoy ed a paren t-ch i l d relat ionsh ip with the Deced ent both befor e Dorot hy's death and after Dorot hy's d e ath. Howev er, the Deced ent's relat ionsh ip with Tim was strai ned at the time of the Deced ent's death
. The Deced ent d id not adopt Crys tal, Tiger , andTim.
"Th e Deced ent owned two resid ences at the time of h i s d eath: (1) the resid ence locat ed [on] Barat ara Drive in Chick asaw ('Bar atara Prope rty') , and (2) the resid ence locat ed [on] East Third Stree t in Chick asaw ('Thi rd Stree t Prope rty')
. The Deced ent and Katin a resid ed in the Barat ara Prope rty at the time of the Decede nt's deathand Tim resid ed in the ThirdStre et Pr opert y.
"It is undis puted that the Deced e n t was conte mplat ing the formu latio n and execu tion of a new l a st will and testa ment at the time of the Deced ent's death . A new last will and testa ment was n ot final ized becau se of the Deced ent's indec isio n about the Third Stree t Prope rty and matte rs relat ing to Tim

. I t is also notew orthy that all of the parti es agree that the Deced ent was an intel lig ent perso n. "Kati na retur ned to Calif ornia after the D e c e dent' s death
. Katin a curre ntly resid es in Calif ornia

. "Dece dent' s Las t Wil l andTest ament

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"On Septe mber 27, 2 0 0 2 , the Deced ent made and

publi shed his last will and testa ment ('Wil l'). The Will was admit ted to proba te by the Court on Febru ary 4, 2013. Frank H. Kruse , Esq. ('Kru s e '), Gener al Admin istra tor for Mobil e Count y, was appoi nted as the perso nal repre se n t a t ive of the Deced ent's estat e. Lette rs of Admin istra tion on the Annex ed Will were issue d to Kruse on March 1, 2013.
"The Will provi des in perti nent part as follo ws:
"'FOU R
"'Pro vided that she survi ve me, I GIVE, DEVIS E and BEQUE ATH my resid entia l homep l ace, (incl uding the conte nts and furni shing s there in) , all real prope rty where soeve r situa ted, all motor vehic les (incl uding any autom obile s, truck s, boats , all terra in vehic les), and all cash asset s (incl uding but not limit ed to stock s, bonds , certi ficat es of depos its, indiv idual retir ement accou nts, thrif t ac count s, savin gs accou nts, check ing accou nts, and cash on hand ) t o my wife, DOROT HY MARIE CRITO POULO S.
"'FIV E
"I n t h e event that my wife, DOROT HY MARIE CRITO POULO S, shall not survi ve me, then to my stepc hildr en, namel y, CRYST AL MARIE COLLI NS, EDWAR D S. FERGU SON, [V], AND TIM O T HY D. FERGU SON, I give, devis e and beque a th the follo wing: my resid entia l homep la c e, (incl uding the conte nts and furni shing s there in), all real prope rty where soeve r situa ted, all motor vehic les (incl uding any autom obile s, truck s, boats , all terra in vehic les), and all cash asset s (incl uding but not limit ed to stock s, bonds , certi ficat es of depos its, indiv idual

511304 86 retir ement accou nts, thrif t acc ounts , savin gs accou nts, check ing accou nts, and cash on hand) in equal share s to share and share alike ; if any of my stepc hildr en prede cease me, their s hare shall go to their chil dren per s tirpe s.
"'In order for a des ignat ed b e nefic iary to be deeme d to have survi v e d me, said perso n must survi v e m e by more than thirt y (30 ) day s.'
"Dece dent' s Rel ation ship With Katin a
"The Deced ent first met Katin a durin g Dorot hy's lifet ime. It is undis puted that, appro ximat ely 12 years prior to his death , the Deced ent had a roman tic extra m arita l relat ionsh ip with Katin a, while the Deced ent wa s m arrie d to Dorot hy. No testi mony was prese nted as to wheth er D o rothy was aware o f the Deced ent's relat ionsh ip with Katin a. Tiger and Cryst al didn' t learn of the r elati onshi p until Kati na mo ved t o Mob ile.
"The Dece d e nt and Katin a had conta ct with each other follo wing Dorot hy's death
. Katin a came fro m Calif ornia to Mobil e, Alaba ma, with all of her perso nal belon gings in her suitc ase . The Deced ent purch ased Katin a's airli ne ticke t to trave l from C a lifor nia to Mobil e. Accor ding to Bryan Rob e r t Smith -Ange l ('Smi th'), the Deced ent's best frien d, Katin a told the Deced ent that Katin a would not come to Mo bile unles s the y got marr ied.
"The Deced ent consi dered havin g a prenu ptial contr act with Katin a and delib erate ly chose not to pursu e such. The Deced ent and Katin a marri ed on Augus t 20, 2011. Du r i ng the marri age the Deced ent purch ased a motor vehic le for Katin a. The Deced ent also p aid the apart ment renta l for Katin a's daugh ter, who resid ed in Calif ornia after Katin a movedto M obile

.
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"Dece dent' s Est ate
"As noted earli er, the De c e dent was gainf ully e mploye d in the Unite d State s Civil Servi ce at the time of the Deced ent's death
. At the time of his death , the Deced ent owned the follo wing prope rty with the i ndica ted e stima ted v alue: "Prop erty Estim ated Value
"Bara tara Prope rty $l52, 500.0 0
"Thir d Str eet P roper ty 80, 500.0 0
"'Gre ek Bo nds' held by HS BC un known 1
"U.S. Savi ngs B onds 16, 700.0 0 "Regi ons B ank a ccoun t 89, 342.8 1
"Mone y Con cepts Acco unt 45, 000.0 0 plus 2
"E-Tr ade A ccoun t trans ferre d to es tate accou nt (Regi ons)
"Thri ft Sa vings Plan Appro ximat ely $422, 170.0 0 3
"Hous eholditem s, fu rnitu re $6, 280.0 0 4 and f urnis hings at B arata ra Prope rty
"Fine jewe lry $4, 671.0 0
"Watc hes $ 687.0 0
"Fire arms $4, 000.0 0 5

711304 86

"2007 Chev rolet Taho e $23, 500.0 0 [spor t-uti lity vehic le]
"Excl uding the value of the Thrif t Savin gs Plan and the Mon e y Conce pts Accou nt, the value of the Deced ent's estat e at the time of the Deced ent's death was appro ximat ely $378, 200. Of said amoun t, $233, 000 is attri buted to the estim ated value of two resid ences . The real estat e marke t i n the Mobil e area has been and remai ns depre ssed. The real estat e holdi ngs compr ise 61.6 perce nt of the Deced ent's total esta te.
"Addi tiona lly, the Deced ent had the follo wing life insur ance polic ies:
"Poli cy Estim ated Value
"FEGL l (adminis tered appro x. $ 542,2 00.00 6 by Me tLife ) "ArmyAvia tion Cente r FCU $2, 061.7 8 7
"ASC $100, 000.0 0 8
"Fina lly, the Deced ent maint ained a 'trus t accou nt' for one of Cryst al's daugh ters, which had appro ximat ely $8,00 0 at the time of the Deced ent's death
. "Kati na's Separ ate E state at T ime o f Mar riage
"At the time of Katin a's marri age to the Deced ent, Katin a h a d no savin gs and was 'work ing paych eck to paych eck.' Furth er, Katin a owned no real estat e. Sever al month s befor e the Deced ent died, Katin a worke d. Katin a had a separ ate ch e c king accou nt.

" W h at Katin a Has Recei ved as a Resul t of th e Deathof t he De ceden t

811304 86
"At the time of the Deced en t ' s d eath, the

D e c e dent and Katin a had a joint check ing accou n t with right s of s u r vivor ship. Katin a also had a separ ate check ing accou nt. Katin a recei ved the funds in these chec king accou nts. The Deced ent execu ted the appro priat e docum entat ion prior to his death to facil itate Katin a recei ving: (1) a share ($211 ,084. 85) of the Deced ent's 'Thri ft Savin gs Plan' benef its; (2) fifty (50%) share ($271 ,101. 02) of the Deced ent's life insur ance benef its (thro u gh the 'FEGL I' progr am adm inist ered by MetLi fe); (3) $ 75,51 7.98 of lump sum death benef its (redu c e d appro ximat ely $ 15,00 0.00 for antic ipate d feder al taxes ); and (4) $ 2,061 .78 of life insur ance throu gh the Army Aviat ion Cente r F edera l Credi t Union

. K a t i na also recei ved $3,32 5.59 from the Unite d State s Gover nment (the Deced ent's emplo yer) for unpai d compe nsati on due the Deced ent. Final ly, Katin a recei ves a month ly stipe nd of $532. 37 as the Deced en t 's survi ving spous e. The lump sum payme nts to Ka tina total $548 ,091. 22.
"What Dorot hy 's Child ren Have Recei ved as a Resul t of the D eath of th e Dec edent "Crys tal and Tige r each recei ved 25 perce nt share s of the Deced e n t ' s Thrif t Savin gs Plan and life insur ance benef its (thro ugh the 'FEGL I' progr am admin ister ed by MetLi fe). Tiger and Cryst al were also the death be nefic iarie s of the Money Conce pts Accou nt. Tiger , Cryst al, and Tim were the named benef iciar ies of the ASC insur ance polic y. Tiger testi fied that Tiger had recei ved the polic y asset s as a resul t of the D ecede nt's death : "Thri ft Sa vings - $105 ,542. 42
"FEGL I (Me tLife ) - $135, 550.5 1
"Mone y Con cepts - $45, 000.0 0
"ASC Insur ance Polic y - 1 /3 of $100 ,000

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"Alto gethe r, Dorot hy's child ren h a v e colle ctive ly recei ved appro ximat e ly $672, 186.0 0 a resul t of the Deced ent's deat h. 9
"Dece dent' s Comme nts Regar ding D i s posit ion of Deced ent's Esta te
"When Dorot hy d i ed, title to most, if not all, of the Deced ent's and Dorot hy's asset s were h e l d j o int with right s of survi vorsh ip or in one of t h e spous e's name with the o t her spous e indiv idual as the ben e f i c iary upon death
. The Deced ent was the benef iciar y of Dorot h y 's indiv idual retir ement accou nt, with Dorot hy's child ren named as conti ngent benef iciar ies. The Deced ent recei ved the asset s of Dorot hy's indiv idual retir ement accou nt upon Dorot hy's death
. "Tige r testi fied that the Deced ent t o l d Tiger befor e the Deced ent and Katin a marri ed that: (1) the Deced ent and Katina plann ed to get marri ed, (2) any prope rty the Deced ent acqui red befor e h i s marri age to Katin a would be devis ed by the Deced ent to Tiger , Cryst al, and Tim upon the Deced ent's death, and (3) any prope rt y the Deced ent acqui red after his marri age to Katin a would be devis ed to Katin a. After the Deced ent marri ed Katin a, Tiger 's relat ionsh ip with the Deced ent conti nued. There were perio dic visi t s . Accor ding to Tiger , on one such visit the Deced ent told Tiger th a t the Deced ent inten ded to make finan cial provi sions for Katin a, al thoug h he (the Deced ent) did n ot kn ow ho w he woulddo s o. "Smit h testi fied that t he Deced ent told Smith that he (the D e c edent ) plann ed to formu late a new last will and testa me n t that would provi de for Katin a, Tiger , and Cryst al. A ccord ing to Smith the Deced ent wante d to provi de for Katin a becau se 'she was h is wi fe an d he lovedher. '
"Smit h testi fied that appro ximat ely three to five month s prece ding the D e c e dent' s death the

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Deced ent and Smith had a conve rsati on a b o ut a new estat e plan the Deced ent propo sed formu latin g. Smith testi fied that in said conve rsati on the Deced ent s t ated that the Deced ent wante d to: (1) devis e the Barat ara Prop e r ty to Katin a; (2) devis e the Third Avenu e resid ence to Tiger and Cry s tal (in order to affor d Tim a place to resid e in fulfi llmen t of a promi se the Deced ent made to Dorot hy befor e her death ); (3) name Katin a as the benef iciar y o f an exist ing life insur ance polic y where Dorot hy was the named benef ic iary; and (4) name Katin a, Tiger , and C rysta l as the benef iciar ies of the Deced en t ' s 'gove rnmen t life insur ance' and other life insur ance on the Deced ent's life. Smith testi fied that he told t he Deced ent that he (Smit h) objec ted t o t h e Deced ent's prop o s al, sayin g 'you can't do that to the kids

- - y ou need to split the prope rty equal ly among st th em.' "Crys tal and the Deced ent conve rsed about a month prior to the Deced ent marry ing Katin a, and the Deced ent state d that Kati n a was not inter ested in the Deced ent's money . Cryst al also testi fie d that follo wing the Deced ent's marri age to Katin a, Cryst al and the Deced ent spoke sever al times regar ding the Thi r d Stree t resid ence. Cryst al testi fied that the Deced ent told Cryst al that the Deced ent had promi sed Dorot hy that Tim would have a place to live. The Dece d e nt was afrai d that Tim would lose the Third Stree t resid ence if it w as deede d outri ght to Tim and the Deced ent wante d to give the house to Cryst al with the under stand ing that Tim couldreside in the resid ence. Cryst al furth er testi fied that she objec ted to the Deced ent devis i ng the Third Stree t resid ence to C r y stal becau se she did not want the respo nsibi lity. Cryst al testi fie d that she had no discu ssion s with the Deced ent regar ding the Deced ent's other asset s. Final ly , a b out a month befor e the Deced ent died, Cryst al testi fied that the Deced ent told Cryst al with refer ence to Katin a that 'I will make sure she's taken care of if so m e t h ing happe ns to me.'

1111304 86 "Kati na testi fied that the Deced ent told her

that upon his death the Deced ent desir ed: (1) Katin a recei ve the Barat ara Prope rty; (2) Tiger and Cryst al r eceiv e the Third Stree t Prope rty, with Tim conti nuing to r eside in said resid ence; (3) other finan cial arran gemen ts would be m a d e to provi de compe nsati on to Tiger and Cryst al becau se Dorot hy had lived in and he l p e d acqui re the Barat ara Prope rty; and (4) all of the Deced en t ' s remai ning asset s with the excep tion of vario us firea rms and house hold furni shing s and perso nal prop erty purch as e d p rior to the Deced ent and Katin a being marri ed, w ould be de visedto K atina

. "Even ts Fo llowi ng De ceden t's D eath
"Ther e was elect ronic mail ('e-m ail') dialo gue betwe en Katin a and Cryst al follo wing the Deced ent's death regar ding the dispo sitio n of the Deced ent's estat e. In an e-mai l messa ge dated Augus t 11, 2012 (appr oxima tely one month follo wing the Deced ent's death ), Katin a relat ed to Cryst al that she (Kati na) knew 'Jim' s [the Deced ent] wishe s . . . and I'm willi ng to execu te them. This way I can be the "fall guy" with Tim and it not inter fere with your sibli ng relat ionsh ip.' This e-mai l messa ge was sent days befor e Katin a and Tiger met with Ch a rles Hicks ('Hic ks'), a la wyer in Mo bile, Alab ama. "Hick s met with Katin a on four (4) or five (5) occas ions to discu ss the Will. Katin a, T i g er, and Smith were physi cally prese nt at the initi al meeti ng and Cryst al parti cipat ed b y telep hone. At the initi al meeti ng, the perso ns pr e sent discu ssed the Deced ent's int entio ns and wishe s. At said meeti ng Katin a indic a ted that the Deced ent wante d the bulk of his estat e to go to Katin a , C r ystal , and Tiger

. Katin a furth er indic ated that the Deced ent ha d had a falli ng o u t with his other steps on (by deduc tion this w a s Tim). Katin a state d that the Deced ent's wishe s w e r e f o r Tim to recei ve nothi ng of the Deced ent's esta te.

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"At the meeti ng with H i cks, the parti es

attempted to reach an agree me n t regar ding the distr ibuti on of the Deced e n t 's asset s in a manne r t h at diffe red from the provi sions of the Will (Tim would recei ve less than the other s). Hicks testi fied that the parti es recog nized tha t any agree ment to distr ibute the Deced ent's asset s in a manne r diffe rent from what the Will provi ded would requi re Tim's agree ment. Hicks prepa red and filed with the Court the petit i o n to proba te the Will. As noted above , the Will was admit ted to proba te witho ut objec tion. There were sever al follo w- up conve rsati ons betwe en Hicks and Katin a and Tiger

. The parti es could not reach an agree ment. Based upon comme nts made in the subse quent conve rsati ons, Hicks deter mined that h e had a confl ict of inter est and Hicks wit hdrew from repre senta tion of any party in inter est i n thi s cau se.
"In a docum ent dated Febru ary 1, 2013, that was prese nted to Tiger and Cryst al, Katin a state d that she e xpect ed th e fol lowin g:
"1. 5 0 per cent of th e fol lowin g ass ets:
"A. Barat ara P roper ty "B. ThirdStre et Pr opert y "C. U.S. Savin gs Bo nds "D. All accou nts admin ister ed by Money Conce pts "E. Scott rade accou nts "F. E Tra de ac count s "G. 2007 ChevyTaho e "H. All a ccoun ts he ld at HSBC in G reece "2. One firea rm the Deced ent purch ased short ly befor e his deat h
"3. Th e house hold furni shing s purch ased while the Deced ent and Katin a were a coupl e (iden tifie d as the livin g room furni ture, infor mal dinin g set, bed, telev ision , weddi ng gifts , and Greek langu age recor dings ).

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"Post ure o f Dec edent 's Es tate Proce eding
"On April 9, 2013, Katin a fi l e d her 'Peti tion for an Omitted Spous e's Share Pursu ant to Ala. Code 1975 § 43-8- 90, or, in the Alter nativ e for Furth er Relie f.' In her prayer for relie f Katin a reque sted t h a t the Court deter mine that Katin a was t h e Deced ent's omitt ed spous e. Alter nativ ely, Katin a reque sted that the Court award Katin a he r elect ive share pursu ant to Ala. Code 1975, § 43-8- 70, and the allow ance provi ded in Al a. Code 1975, §§ 43-8- 110, 111 and 112. Later , Katin a withd rew her reque st for an el ectiv e sha re.
"

" The parti es appar ent l y all agree that the

1 value of t he Gr eek b onds is qu estio nable
.

" This accou nt was payab le on death to Tiger and 2 Crys t al. Tiger testi fied that he had recei ved $45,0 00 as a resul t of this a s s e t. The amoun t Cryst al re ceive d is unkno wn.

" The pay-o n-dea th benef iciar ies of the Plan 3 were Katin a (50 perce nt), T i g er (25 perce nt) and Cryst al (2 5 per cent)
.

" Accor ding to her Febru ary 1, 2013, state ment 4 (see below ), K a t i na has posse ssion of the livin g room furni ture, infor mal dinin g set, bed, telev ision , weddi ng gifts and Greek langu age recor dings that were in the Barat ara Prope rty. I t is uncer tain as to wheth er these asset s are inclu ded in th e Per sonal Repr esent ative 's in vento ries.

" Accor ding to her Febru ary 1, 2013, state ment, 5 Katin a has posse ssion of one fire arm (desc ribed as being a 'hand gun')
. It is u n c ertai n as to wheth er this fi r e a rm is inclu ded in the Perso nal Repre senta tive' s inv entor ies.

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" The pay-o n-dea th benef iciar ies of the polic y 6
w e r e Katin a (50 perce nt), Tiger (25 perce nt) and Cryst al (2 5 per cent)
.

" Katin a was the benef iciar y of this polic y. 7

" The pay-o n-dea th benef iciar ies of the poli cy 8 were Tiger , Cry stal and T im (o ne-th ird e ach).

" Compu tatio n presu mes that Cryst al a l so 9 recei ved $45,0 00 as a re s u l t of being a 50 perce nt deathbene ficia ry of the MoneyConc epts Accou nt."
The proba te cour t w e nt on to discu ss the appli cable
casel aw regar ding § 43-8- 90. The proba te court liste d

sever al point s a court is to consi der in makin g omitt ed-sp ouse
deter minat ions. The proba te court noted t h a t § 43-8- 90 provi des t hat a n omi tted spous e sha ll re ceive the same share
of the e s t a t e h e or she would have recei ved if the deced ent
had left no will. The intes tate share for a survi ving spous e is set out in § 42-8- 41, Ala. Code 1975, and the proba te court
noted that becau se the deced ent had no biolo gical child ren and

no su rvivi ng pa rents , Kat ina w ould be en title d to all o f the
deced ent's inte state esta te. The p robat e cou rt co nclud ed:
"In the insta nt cause , Tiger a n d Cryst al have t h e burde n of provi ng that the trans fers by th e Deced ent to or for the b e n e f it of Katin a were inten ded to be in lieu of a testa menta ry provi sion. As noted above , an indic ation of such can be

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obtai ned b y compa ring the value of the proba te estat e to the value o f the prope rty the respe ctive inter ested parti es have recei ved or will recei ve. Tiger and Cryst al provi ded such infor matio n to the Court
. Howev er, the Alaba ma appel late cases discu ssed herei n and the decis ions of other state s' appel late court s cited with appro val by the Alaba ma Supre me Court note that there are other facto rs to be consi dered as well by a trial court w h e n tryin g to deter mine a testa tor's i n tent in this type of matte r. "Tige r and Cryst al provi ded no other evide nce to suppo rt their posit ion that at the time the Deced ent made the benef iciar y desig natio ns that mad e Katin a a be n e ficia ry, the Deced ent inten ded by those d esign ation s and actio ns that Katin a recei ve said benef its i n lie u of a tes tamen tary provi sion.
"Furt her, the actua l docum ents refle cting the benef iciar y desig natio ns for the Deced ent's Thrif t Savin gs Plan and FEGLI life insur ance benef its were not intro duced into evide nce. Conse quent ly, the Court is unabl e to consi der the t i m i n g of said actio ns by the Deced ent in relat io n to the Deced ent's state ments to Tiger , Cryst al, Smith , and Katin a that the Deced ent wante d to revis e the W ill and updat e hi s estat e plan. There was no testi mony that the Deced ent told anyon e that he was makin g the benef iciar y desig natio ns in quest ion that benef ited Katin a in lieu of a testa menta ry provi sion in favor of Ka tina.
"Test imony was prese nted that the Deced ent consi dered havin g a prenu ptial contr act with Katin a and delib er a tely chose not to pursu e such. The delib erate act o f not havin g a prenu ptial contr act is no tewor thy i n the inst ant c ause. "Tige r and Cryst al cited Weste r [v. Baker , 675 So. 2d 447 (Ala. C i v . App. 1996) ,] in suppo rt of their posit ion. As noted above , i n Weste r was
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testi mony t h at the deced ent state d to a disin teres ted perso n t hat the deced ent was pleas ed with her last will and testa ment the way it had been draft ed and she would leave it that way. Weste r, 615 So. 2d at 448. As noted by Katin a, it is clear that in Weste r the deced ent did not plan t o c h a n ge the deced e n t's last will and testa ment. The undis puted testi mony in this cause is the exact oppos ite: (1) t h e Deced ent was not happy with the Will; (2) t h e Deced ent desir ed to chang e t he Will; and (3) the Deced ent was strug gling with how to provi de for Katin a, addre ss his testa menta ry provi sion for Tim, and a ddres s the Thir d Str eet P roper ty. 1 1
"The Court is cogni zant that: (1) the purpo se of the o m i tted spous e statu te is to prese rve the remai nder of the will, while still provi ding for the omitt ed spous e; (2) by rulin g tha t K a tina is an omitt ed spous e, coupl ed with the provi sions of Ala. Code 1975, § 43-8- 41, pract i cally speak ing, Tiger , Cryst al, and Tim will no t p artic ipate as benef iciar i e s of the Deced ent's proba te estat e and Katin a wil l be the only benef iciar y of the Deced ent's proba te estat e; and (3 ) K atina will recei ve more than she ackno wledg ed that the Deced ent inten ded f or he r to recei ve up on hi s dea th.
"At first blush , th is resul t appea rs harsh
. Howev er, it must be remembered that: (1) survi ving spous es are accor ded speci al right s in the law; (2) 1 2 child ren of deced ents c a n be and are frequ ently 13 disin herit ed by their par ents; (3) adult child ren 1 4 of a deced ent are not accor ded any speci al statu s in this aspec t of proba te la w ; a nd (4) the Alaba ma Legis latur e speci fies Alaba ma's s tatut ory-p ositi ve law, not the court s. Notwi thsta nding such, it must also be noted that Tiger , Cryst al, and Tim have all recei ved subst antia l amoun ts as a resul t of the Deced ent's death , which the Deced ent was not legal ly r e q u ired to provi de to them. Final ly, it must b e reme mb e r ed that this Court (and all court s) make rulin gs based upon the law, not wha t a parti cular

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perso n in a posit ion to make a decis ion likes or consi ders moral
. Becau se of the facts in this case, Katin a will recei ve more of t h e Deced ent's estat e than she ackno wledg ed the Deced ent desir ed for her to recei ve. Such i s a moral matte r for Katin a to ponde r andact as he r con scien ce di ctate s. "Upon consi derat ion of demea n o r of all of the witne sses, the docum entar y evide nce intro duced and appli cable law, the Court is of the opini on, for the reaso ns state d herei n, that Tiger and Cryst al faile d to meet their burde n of provi ng that the t ransf ers by the Deced ent to or for the benef it of Katin a were inten ded t o be lieu of a testa menta ry pr ovisi on. "Upon consi derat ion of demea nor of all the witne sses, the docum entar y evide nce intro duced and appli cable law, the Court is of the opini on, for the reaso ns state d herei n, t h a t Katin a is an omitt ed spous e in this cause and that she shoul d be accor ded such statu s in the D ecede nt's estat e.
"____

____________

" The C ourt notes that Tim is in possessio n of 1 1 the Third Stree t Prope rty. There was no evi d e nce that the Dece d e n t ever told Tim or any other party in inter est that the Deced ent was conve ying or gifti ng the Third Stree t Prope rty to Tim. And there is no speci fic devis e of the Third Stree t Prope rty to Tim in the Will. Conse quent l y , the Court found no legal bases to rule that Tim now owns the Third Stree t Prope rty or to decla re that Tim would recei ve t h e T hird Stree t Prope rty. See also, Ala. Code 1975, §§ 8 -9-2 and 3 5-4-2 0.

" Survi ving spous es' speci al statu s is 1 2 refle cted in allow ances , exemp tions avail able to them, along with t h e right to elect again st a will or to asser t right s as an omitt ed spous e, as was done by Ka tina in th e ins tant cause .
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" In the insta nt cause it is undis puted that 1 3 Tiger , Cryst al , and Tim are not the Deced ent's c h ildre n. The only basis for their havi n g a n inter est in the D e c e dent' s estat e is their being namedbene ficia ries in th e Wil l.

" It is very commo n for mar ried perso ns with 1 4 child ren to provi de in their last will and testa ment that their enti r e estat e will be devis ed to their survi ving spous e upon their death , even if there are child ren of said marri age. Typic ally when there is a secon d s p ouse and child ren of a prior relat ionsh ip, testa tors make testa menta ry provi sions for their survi ving spous e or other wise they have a prenu ptial cont ract. " Tiger file d a t imelyappe al.

Stand ard o f Rev iew

Becau se the proba te c o u r t recei ved evide nce ore tenus ,

our r eviewis g overn ed bythe follo wing princ iples :

"'"'[ W]hen a trial court hear s o re tenus testi mony, its findi ngs on disp u t ed facts are presu med corre ct an d i t s judgm ent based on those findi ngs will not be rever sed unles s the judgm ent is palpa bly erron eous or manif estly unjus t.'"' Water Works & Sanit ary Sewer Bd. v. Parks , 977 So. 2d 440, 443 (Ala. 2007) (quot ing Fadal la v. Fadal la, 929 So. 2d 429, 433 (Ala. 2005) , quoti ng in turn Philp ot v. State , 8 4 3 S o. 2d 122, 125 (Ala. 2002) ). '"The presu mptio n of corre ctnes s, howev er, is rebut table and may be overc ome where there is insuf ficie nt evide nce prese nted to the trial court to susta in its judgm ent." ' Waltm an v. Rowel l, 913 So. 2d 1083, 1086 (Ala. 2005)(quo ting Denni s v. Dobbs , 474 So. 2d 77, 79 (Ala. 1985) ). 'Addi tiona lly, the ore tenus rule d o e s not exten d to cloak with a presu mptio n o f corre ctnes s a trial judge 's concl us i o ns of law or
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the incor rect appli catio n of law to the facts .' Waltm an v. Rowe ll, 9 13 So . 2d at 10 86."
Retai l Dev elope rs of Alab ama, LLC v . Eas t Gad sden Golf Club, Inc., 985 So. 2 d 924 , 929 (Ala . 200 7).
Discu ssion
Secti on 43 -8-90 prov ides: "(a) If a testa tor fails to provi de by will for his survi ving spous e who marri ed the testa tor after the execu tion of the will, the omitt ed spous e shall recei ve the same share of the estat e he wo u l d have recei ved if the deced ent left no w i l l unles s it appea rs from the will that the omiss ion was inten tiona l or the testa tor provi ded for the spous e by trans fer outsi de the will and the inten t that the trans fer be in lieu of a te s tamen tary provi sion be reaso nablyprov en. "(b) In satis fying a share provi ded b y this secti on, the devis es made by the w i l l abate as provi ded i n sec tion 43-8- 76[, Ala. Code 1975] ."

In Hellu ms v. Reinh ardt, 567 So. 2d 274 (Ala. 1990) , this
Court addr essed , for the first time , the inte rpret ation of §
43-8- 90 and the burde n of proof in actio ns broug ht pursu ant to
the omitt ed-sp ouse statu te. We recog nized that § 43-8- 90 was
based upon the Unifo rm Proba te C o de ("UPC ") draft ed by the
Natio nal C onfer ence of Co mmiss ioner s on Unifo rm St ate L aws:

"The purpo se of § 43–8– 90, which is based on UP C § 2–301 , i s to remed y the unint entio nal disin herit ance of a spous e when the deced ent's will was execu ted befor e their marri age. The adopt ion of

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that secti on refle cts 'the view that the intes tate share of the spouse is what the deced ent would want the spous e to h a v e if he had thoug ht about the relat ionsh ip of his old will to his new situa tion. ' Comme ntaryto § 43–8 –90."
567 S o. 2dat 2 77.
The Hellu ms Court looke d to other state s that had adopt ed
versi o n s of the UPC's omitt ed-sp ouse provi sion. The Court
concl uded that th e b u r d e n of proof that must be met is that

once the survi v i n g spous e prove s that he or she was omitt ed
from the will, the burde n of proof th e n s hifts to the
propo nent of th e wil l to show that the t estat or pr ovide d for
the s urviv ing s pouse by i nter vivos tran sfers and that those
trans fer s were inten ded to be in lieu of a testa menta ry provi sion. This inter preta tion was consi stent with the court s
in North Dakot a and Arizo na as set out in I n re Estat e of
Knuds en, 342 N.W.2 d 387 (N.D. 1984) , and In re Estat e of
Beama n, 119 Ariz. 614, 583 P.2d 270 (Ariz

. Ct. App. 1978) , respe ctive ly. The C ourt state d:
"Shif ting the burde n to the propo nent of the will to prove that the testa tor provi ded for the spous e outsi de the will is most consi stent with the terms of the s t a tute, which requi res that the will make appar ent an inten t to omit the futur e spous e or that the testa tor's in tent to subst itute an inter vivos trans fer for a testa menta ry provi sion be reaso nably prove n."

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567 S o. 2dat 2 77. The C ourt went on to addr ess i nter vivos

trans fers that have been he l d t o be in lieu of testa menta ry provi sions , such as the openi ng of j o i n t-ten ancy check ing

accou nts and savin gs accou nts and the assig nment of retir ement
or in suran ce be nefit s as set o ut in In r e Est ate o f Tag gart,
95 N.M
. 1 1 7 , 6 1 9 P.2d 562 (N.M. Ct. App. 1980)

. The Court
also not e d o t her trans fers that would satis fy this requi remen t, as set out in Annot ., 11 A.L.R
. 4th 1213 (1982 ).

In Hellu ms, the deced ent execu ted her will on June 29,
1987. She marri ed Hellu ms on May 20, 1988, and remai ned
marri ed to him until her death on December 1, 198 8

. N o evide nce was prese nted that the d ecede nt gave Hellu ms any inter vivos gifts , and the deced ent's will did not conta in any langu age i n d i catin g that the deced ent inten ded to omit a
futur e spous e or res trict a futur e spous e's inher itanc e. Holdi ng that the proba te court h a d e r red in findi ng that
Hellu ms wa s not enti tled to an inte state shar e as an om itted
spous e, th is Co urt r evers ed th e jud gment
. In Becra ft v. Becra ft, 628 So. 2d 404 (Ala. 1993) , the
widow petit ioned for an omitt ed-sp ouse share of the deced ent's
estat e. The widow showe d her eligi bilit y as an omitt ed spous e

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under § 43-8- 90 by prese nting evide nce indic ating that she was marri ed to the deced ent until his death seven month s after the
marri age. The deced ent h ad a will at th e tim e of his d eath.
Howev er, that will had been writt en years earli er and left his
entir e estat e to Bar b a r a , his wife at time the will was

execu ted. The deced ent's will also provi ded that, if Barba ra prede cease d him , the esta te wo uld g o the ir ch ildre n. I t was
undis puted that the deced ent made the widow the benef iciar y of

a $25,0 00 lif e -insu rance polic y. The issue was wheth er the
child ren, a s propo nents of the will, reaso nably prove d that
the deced ent inten ded the insur ance proce eds to be in lieu of

a testa menta ry provi sion. The proba te court concl uded that the
child ren had not carri ed their burde n o f s howin g that the
insur ance polic y was given in lieu of a testa menta ry provi sion. The child ren's t e s t i mony that the deced ent
inten ded his estat e to go them was contr adict ed by the widow 's
testi mony. The proba te court also consi dered the
circu mstan ces s urrou ndingthe deced ent's marr iage and d eath.
The proba te court also consi dered the amoun t of the insur ance
proce eds and the size of the intes tate share
. We affir med the proba te court 's judgm ent. We noted that the size of an inter

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vivos gift or o ne th at pa sses outsi de th e est ate i n rel ation

to the intes tate share is relev ant to the quest ion wheth er the gift was inten ded to be i n l i eu of a testa menta ry provi sion
but that there is no requi remen t that an inter vivos or extra

estat e gift be equal t o or appro ximat ely the same as an intes tate share to quali f y a s a trans fer in lieu of a
testa menta ry pr ovisi on.
In Kellu m v. Du t t o n , 706 So. 2d 1179 (Ala. 1997) , the
husba nd fi led a peti tion again st hi s dec easedwife 's es tate,
seeki ng a share as a n omi tted spous e. I n 198 8, th e wif e had

execu ted a will leavi ng her resid ual estat e to her nephe w and
his wif e . O n D e cembe r 13, 1991, the parti es enter ed into a
prenu ptial agree ment, condi tione d upon their futur e marri age,
where by ea ch wa ived and r eleas ed "a ll ri ghts" to t he ot her's
estat e. On December 14, 1991, the parti es marri ed. In 1994,
the wife died. The husba nd was not entit led to a share of the
wife' s estat e as a survi ving spous e omitt ed from the wif e 's
1988 will, w hich preda ted their marri age. The prenu ptial
agree ment was a vehic le of trans f e r , outsi de the will, and
const itute d suffi cient proof of the wife' s inten t that that

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inter vivo s tra nsfer be i n lie u of makin g pro visio ns fo r the
husba nd in her will.
The Court of Civil Appea ls in Weste r v. Baker , 675 So. 2d
447 (Ala. Civ. App. 1996) , uphel d the proba te court 's holdi ng
that t h e h u s band was not entit led to a share as an omitt ed

s p o use. The wife had execu ted a will in 1972, namin g h e r niece as t he so le be nefic iary and t he ex ecutr ix of her will.
The wife marri ed the husba nd in 1973. In 1974, they purch ased
real prope rty in joint tenan cy with right of survi vorsh ip, and they livedon t his p roper ty. The w ife h ad an other parc el of
prope rty. The wife died in 1994. The husba nd petit ioned the proba te c o u r t t o recei ve a share of the wife' s estat e as an omitt ed spous e. The niece , as the pr o p o n ent of the will,
prese nted evide nce f rom o ne of the wife' s sis ters indic ating
that she and the wife had discu ssed the will abou t a y e a r
befor e the wife' s death and that the wife had helpe d the
husba nd purch ase the house so that he would have a home of his

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

was also testi mony from the wife' s siste r-in- law that the wife
told her that the husba nd had been peste ring her to chang e the

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will but that she was pleas ed with the will and would leave it
the w ay it was.
The purpo se of § 43-8- 90 is to avoid an unint entio nal
disin herit ance of the spous e of a testa tor who had execu ted a
will prior to the parti es' marri age. It serve s to give effec t
to the proba ble inten t of the test ator and prote cts the
survi ving spous e. T h e o p erati ve effec t of § 43-8- 90 is to

carve out a n i n t e s tate share as a vehic le to carry out the proba ble int e n t of the testa tor and to prote ct the omitt ed
spous e. Secti on 43-8- 90 goes on to provi de two excep tions to
allow ing an omitt ed spous e an intes t a t e s h a re: (1) if it
appea rs from the will that the omiss ion of the s u r v i v ing
spous e was inten tiona l or (2) if the testa tor provi ded for the
survi ving spous e with trans fers outsi de the w ill with the
inten t that those trans fers were in lieu of a provi sion in the
will. If eithe r excep tion exist s, the survi ving spous e is not
entit led t o a s hare as an omit ted s pouse . Based on Hellu ms and i t s proge ny, and the cases this
Court cite d in Hellu ms, w e dis cern the f ollow ing r egard ing a
deter minat ion wheth er the testa tor provi ded for the survi ving
spous e out side the w ill: (1) i nter vivos tran sfers that have

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been held to be "tran sfers " in lieu of testa menta ry provi sions
inclu de joint -tena ncy check ing an d savin gs accou nts and assig nment s of retir ement or insur ance benef its; (2) the size
of the inter vivos trans fer or a trans fer that passe s outsi de
the estat e in relat ion to the intes tate share may be a
relev ant compa rison , but there is no requi remen t tha t the
inter vivos or extra -esta te gift be appro ximat ely the same as
the intes tate share in order to quali fy as a trans fer in lieu
of a testa menta ry provi sion; (3) a valid prenu ptial agree ment
is a "tran s fer" outsi de the will and const itute s suffi cient proof of inten t that that trans fer is in lieu of a
testa me n tary provi sion; (4) state ments made by the testa tor

conce rning trans fers outsi de the will may be relev ant to show
the testa tor's inten t that the trans fers be in lieu of a
t e stame ntary provi sion; (5) state ments made by the testa tor

conce rning the old will in relat ion to the new marri age may be
relev ant to show that the testa tor reexa mined the will and did

not chang e the will; (6)th e separ ate estat e of the survi ving
spous e maybe r eleva nt; ( 7) th e dur ation of t he ma rriag e may
be re levan t; an d (8) the benef iciar ies u nder the w ill m ay be
relev ant.

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Becau se § 43-8- 90 is desi g n e d to give effec t to the proba ble i ntent of t he te stato r andto p rotec t the surv iving
spous e, the above -list ed r e l e vant consi derat ions or facto rs

are not exclu sive. Other facto rs may also be consi dered
. The
facto rs re levan t in one c ase m ay no t be relev ant i n ano ther.
These f actor s are not a mecha nical check list to reaso nably
prove the testa tor's inten t that the trans fer be in lieu of a
testa menta ry pr o v i s ion, becau se the circu mstan ces and facts
vary from case to ca se in prob ate p rocee dings suchas t his.
With this in mind, we turn to the prese nt case . I t is
undis puted that t h e deced ent execu ted his will in 2002 and
that he and Katin a marri ed in 2011. Nothi ng in the deced ent's
will indic ates that the o missi on of Kati na fr om th e wil l was
int e ntion al; there fore, the first excep tion to the omitt edspous e share is not a p p l i c able. Now, we must deter mine 1
wheth er the proba te court corr e c t ly held that the secon d
excep tion was n ot me t, i. e., t hat T iger faile d to reaso nably

Secti on 43-8- 90 is based on § 2-301 of the U P C
. Since 1 the adopt ion of § 43-8- 90, § 2-301 has been amend ed to provi de for the follo wing excep tion to the omitt ed-sp o use share : If "it appea rs from the will or other evide nce that the will was made in conte mpl a t i o n of the testa tor's marri age to the survi ving spous e," t hen t he su rvivi ng sp ouse is no t ent itled to th e omi tted- spous e sha re. ( Empha sis a dded. ) 2811304 86

prove that the deced ent p rovid ed fo r Kat ina o utsid e the will
and that those trans fers were in lieu of a testa menta ry provi sion.
The deced ent died in 2012, witho u t chang ing his will.
The deced ent had no child ren, his paren ts had prede cease d him,
and he had no survi ving sibli ngs. Becau se § 43-8- 90 provi des
that an omitt ed-sp ouse share is what the omitt ed spous e would
have recei ved if the deced ent had had no will, then under the
intes tate statu te, § 43-8- 41(1) , Ala. Code 1975, Katin a would
recei ve the deced ent's entir e estat e. The benef iciar ies under
the w ill a re Cr ystal , Tig er, a nd Ti m. I t is undis putedthat
the dece d e nt had a "pare nt/ch ild" relat ionsh ip with his stepc hildr en befor e Dorot hy's death a n d that he remai ned
close to Cryst al and Tiger after Dor othy' s death
. When
Dorot hy prede cease d the d ecede nt, all of their asset s were
h eld joint ly with right s of survi vorsh ip. The deced ent wa s
the b enefi ciaryof D oroth y's r etire ment accou nts.
Katin a and the deced ent had an affai r durin g the
deced ent's marri age to Dorot hy. K a tina refus ed to come to
Alaba ma unles s she and the deced ent marri ed. Kati n a h ad no
separ ate estat e; she was livin g paych eck to payc heck befor e

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she marri ed the dec edent
. Katin a and the deced ent were marri ed fo r les s tha n a y ear b efore his death
. The deced ent provi ded Katin a with inter vivos t r a n sfers
and t ransf ers o utsid e the will , inc ludin g che ckingacco unts,
life insur ance, and retir ement benef its. Thos e t r a nsfer s

amoun t to lump- sum p a ym ents total ing appro ximat ely $548, 000
and a mont hly s tipen d for the rest of he r lif e in the a mount
of $900 in pens i o n benef its. Cryst al, Tiger , and Tim all 2
recei ved inter vivos trans fers and trans fers outsi de the will. Cryst al and Tiger each recei ved appro ximat ely $319, 000, and
Tim r eceiv ed $3 3,000 . Th e tri al co urt v aluedthe deced ent's proba te estat e at $ 378,2 00 with $233, 000 attri buted to two
resid ences . The proba te court value d the deced ent's prope rty
locat ed on Barat ara Drive at $152, 500, alth o u gh the house
actua lly s old f or $7 7,000 afte r the dece dent' s dea th.
There was testi mony that the dec edent was consi derin g chang ing his will after his marri age to Katin a. The deced ent
told Katin a and his best frien d that he was consi derin g

This amoun t diffe rs from the amoun t shown by the proba te 2 court ($532 .37) becau se the proba te court did not inclu de the healt h-ins uranc e premi um that is d e ducte d from the pensi on benef it.
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leavi ng the prope rt y o n Third Avenu e to Tim to fulfi l a promi se to Doro thy t o pro vide a hou se fo r Tim . Th e dec edent

was also consi derin g leavi ng the prope rty on Barat ara Drive to
Katin a in order for her t o have a place to live becau se she
had moved to Alaba ma to marry the decea sed. T h e d ecede nt
couldnot decid e wha t to do, a nd he did not c hange his will.

T h e d ecede nt told Cryst al and Katin a that he was going to provi de for Kat i na. Altho ugh the proba te court state s that "by a ll ac count s " t he de ceden t die d une xpect edly, ther e was testi mony from Cryst al that the deced ent was sick and had been
hidin g his i llnes s. There was also testi mony from the
deced ent's best fr i e n d that the deced ent was on oxyge n the
last few m onths of h is li fe.
The proba te court focus es on the fac t t h a t the deced ent

never state d that the trans fers he made to Katin a were in lieu
of chang ing his will. Altho ugh such testi mony was prese nt in

Weste r, supra , and would have been helpf ul here, it is not the only evide nce r eleva nt to showthe testa tor's inte nt. Here,
the deced ent, durin g his brief m a rriag e to Katin a, chang ed
benef iciar ies on his retir ement accou nts and insur ance polic ies. He w as co nside ring chang ing h is wi ll, b ut di d not

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do so. In short , he consi der e d h is old will in relat ion to
his new marri age. He also subst antia lly provi ded for Katin a; Katin a ackno wledg es that, if she recei ved the intes tate share , she would be recei ving more than the deced ent inten ded her to
have.
The proba te court focus es on the fact that Tiger
prese nted no ev idenc e of the p recis e dat es wh en th e dec edent chang ed the benef iciar ies of his retir ement accou nts and lifeinsur ance polic ies. In In re Tagga rt's Estat e, supra , the New
Mexic o court noted that the inten t of the deced ent at the time
of the trans fers contr olled
. In that case, there was an issue

as to w h e t h e r t h e trans fers to the wife were to provi de her
with a conve nient metho d for manag ing the coupl e's expen ses or
wheth er the trans fers were for the w ife's benef it. The
deced ent in Tagga rt made t h e trans fers to his wife short ly
after their marri age, and there was testi mony t h a t the
deced ent state d that he wante d to "prot ect" the wife. The
court state d that it was not mater ial that the trans fers were
later usedby t he wi fe fo r day -to-d ay ex pense s. T he Ta ggart
court went on to discu ss wheth er the trans fers were in lieu of

a testa menta ry provi sion and consi de r ed the facts that the

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marri age was brief , th a t t h e inter vivos trans fers to the
widowrepr esent ed 20 perc ent o f the dece dent' s tot al es tate,
that the widow was also recei ving month ly retir ement benef its

as a resul t of the marri age, and that there was testi mony that
the d ecede nt ha d wan ted t o pro vide for h is fo rmer mothe r-inlaw, who w as th e ben efici ary u nder the w ill. The court held
that the t ransf ers w ere i n lie u of a tes tamen tary provi sion.
Altho ugh the preci se timin g of a trans fer and the type of
trans fer m ay be rele vant in so me ca ses t o sho w the inte nt of
the d ecede nt at the time a tra nsfer is m ade a s to wheth er it

was a "tra nsfer " und er th e omi tted- spous e sta tute or wh ether
it was for some other purpo se, it is undis puted in the prese nt

case that the trans fers were trans fers outsi de the will under
§ 43-8- 90. The issue in this case was wheth er those trans fers

were in lieu of a testa menta ry provi sion. Also, n o o n e dispu tes that the deced ent chang ed the benef iciar ies to hi s retir ement and insur ance polic ies durin g his brief marri age to
Katin a.
In the prese nt case, the amoun t of the trans f e rs made
durin g the m a r r iage, along with the testi mony that the
deced ent consi dered the t e r m s o f his will, the fact that

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Katin a was not inclu ded in the will, the fact that the
deced ent d id no t cha nge h is wi ll, a nd th e fac t tha t the will
ultim ately benef ited Doro t h y ' s child ren provi de reaso nable proof to satis fy Tiger 's burde n of provi ng an excep tion to the
omitt ed-sp ouse share under the facts of this case. We are cogni zant of our st a ndard of revie w, given that the proba te
court heard ore tenus evide nce. Howev er, it was the main role
of the p r obate court in this case to apply the law to the large ly undi s p u ted mater ial facts
. We also are aware that
this is th e fir st ti me th is Co urt h as se t out any guide lines
for deter minin g wheth er a trans fer outsi de a will was in lieu
of a testa menta ry provi sion, and we appla ud the proba te court
for i ts we ll-wr itten orde r.
Based on the foreg oing, the judgm ent of the proba te court
is rever sed, and the cause i s r e m anded for proce eding s consi stent withthis opin ion.

REVER SED AND RE MANDE D.
Moore , C.J ., an d Mur dock, Main , andBrya n, JJ ., co ncur.

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