Via v. Putnam

The Facts

  • T had C from first marriage
  • T and W1 executed mutual wills on Nov 15, 1985, each devising that spouses entire estate to the other w/ residuary going to C upon survivor’s death
  • W1 died
  • T married W2 and failed to execute a new will to provide for W2

Procedural History

  • Upon T’s death, the mutual will was admitted to probate
  • W2 claimed a share of T’s estate under the spouse state
  • C objected, arguing that since their parents had executed mutual wills naming them residuary beneficiaries, they had a creditor’s contract claim that took priority over W2’s claim
  • TC found for C
  • AC reversed and found that W2’s right had priority of that of C

The Issue

  • Whether C should be given creditor status when their interests contravene the interests of the surviving spouse under that statute

The Rule

  • A pretermitted spouse would not be entitled to a share of T’s estate when:
  • Provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement
  • The spouse is provided for in the will
  • The will discloses an intention not to make provision for the spouse

The Holding/Disposition

  • No, affirmed

Court’s Reasoning

  • Cs argue that, by remarrying, T breached the contract not to defeat the distribution schedule set forth by mutual wills
  • Cs argue that they are 3rd party beneficiaries to this contract
  • Legislature would not have intended creditors’ claims by 3rd party beneficiaries to take priority such that the surviving spouse gets not share of the estate

Court has no authority to judicially modify the public policy protecting a surviving spouse’s interest in T’s estate by adopting this creditor-theory approach as an exception to the pretermitted spouse statute

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