[WSBAPT] period of limitation omitted spouse claims againts will

Thu Jul 16 13:03:27 PDT 2015

My 1.5 hours of research on this topic supports Eric's comments on this
thread. My original post was precipitated by the lack of supporting statute
or cases in portions of the Probate Desk Book. But then section 9.3(2) came
to the rescue.

Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321
Em. Mike at winslegal.com

This message is from an attorney, so it's confidential. If you are not the
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From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Thursday, July 16, 2015 12:26 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] period of limitation omitted spouse claims againts
will

I agree the statutory language is mandatory, so that does raise an
interesting question about who does the blame fall upon if it doesn't
happen.

Everything hinges in this circumstance on notice to omitted spouse during
the probate, I think. Both the fact of notice at the beginning to establish
jurisdiction, and the notice at the end prior to final distribution. If
omitted spouse didn't get Notice of Appointment in the first place, the
whole probate is kaput, so let's assume that jurisdiction is established and
closure is the real issue.

If you use the standard Declaration of Completion with standard Notice under
RCW 11.96A.110
<http://app.leg.wa.gov/rcw/default.aspx?cite=11.68&full=true#11.68.110> ,
The PR presumably has done the entire distribution already so the omitted
spouse knows whether or not s/he has received anything. If you use the
alternative form under .112
<http://app.leg.wa.gov/rcw/default.aspx?cite=11.68&full=true#11.68.112> ,
that requires giving each person notice of the expected minimum distribution
due to them, so omitted spouse will get notice of how much s/he is expected
to receive. Any other method involving an accounting will also give notice
of the proposed distribution, so omitted spouse can verify before closing
the estate that s/he will receive the omitted spouse share.

If the omitted spouse gets this kind of notice that s/he is NOT going to get
a share, and yet fails to object to closure, then I think closure and
discharge of the PR kills the potential omitted spouse claim and any claim
for breach of fiduciary duty, by res judicata. I think there are no grounds
for reconsideration under CR 59
<http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=
CR&ruleid=supcr59> . I wonder about appeal...I think the first defense by
the PR would be waiver of the claim by failure to object prior to closing
the Estate. Similar to a nonjudicial DOT foreclosure, the post-closing
remedies should be very very limited. Why should an appeal be heard when the
spouse has full notice and opportunity to be heard prior to closing the
Estate, and failed to do anything.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA  98101-2837
phone 206-625-0092
fax 206-625-9040

From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Tara
Sent: Thursday, July 16, 2015 11:49 AM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] period of limitation omitted spouse claims againts
will

I'll go out on a limb.  My reading of the omitted spouse statute is that the
omitted spouse "must receive" a share.  There isn't something that the
spouse must do in order to activate this right, as opposed to the filing a
petition for a family support award that has a defined procedure and time
frame within which it must be affirmatively activated by the spouse or lost.
When distributing to heirs, the PR must distribute the intestate share to
the omitted spouse and the rest according to the provisions of the will.  Of
course, it would behoove the omitted spouse to get in there and assert those
rights from the get go, especially if there was any question as to whether
the will did in fact "name or provide for the spouse" and the PR was
proceeding as those the omitted spouse was left out intentionally.

If a PR distributed property to other heirs that rightfully was distributed
to the omitted spouse, then a claim for breach of fiduciary duty could be
brought by the omitted spouse at any time before the discharge of that PR
under RCW 11.96A.070(2).  When that time frame ends depends on when and how
the PR closes the estate and is discharged, and provided that the omitted
spouse received proper notice.

In King County, a motion for reconsideration should be viable for an
additional 10 days after the entry of a final decree or the automatic
finalization of the declaration of completion.  And the 30 day period for
appeal actions would be counted.
But beyond that a properly served omitted spouse is probably SOL.

Tara M. Roberts
Puget Sound Law pllc
roberts at pugetsoundlaw.com

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From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Mike Winslow
Sent: Thursday, July 16, 2015 9:50 AM
To: WSBA RPPT Probate & Trust Discussion Forum
Subject: [WSBAPT] period of limitation omitted spouse claims againts will

Would someone direct me to the statute which states the period of limitation
for an omitted spouse (marriage after date of will) to claim intestate share
of an estate, as against the decedent's will?

Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321
Em. Mike at winslegal.com

This message is from an attorney, so it's confidential. If you are not the
intended recipient, it's too late to stop reading this message, but you may
not use it for any improper purpose. Huge Disclaimer available upon request.

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