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HomeMy WebLinkAbout21-2020-115 THUMMA (2) IN RE: ESTATE OF TOM D. : IN THE COURT OF COMMON PLEAS OF THUMMA, Deceased : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 21-20-01 IN RE: PETITION FOR DECLARATORY JUDGMENT AND POSSESSION AND CONTROL OF ESTATE ASSETS BEFORE HYAMS, J. OPINION and ORDER OF COURT HYAMS, J., May 7, 2021. ntestate share of his estate, where his will was executed in the course of their first marriage and he died in the course of their second marriage. For the reasons stated in this opinion, the issue will be resolved in the affirmative. STATEMENT OF FACTS 1 The decedent, Tom D. Thumma, died testate on January 19, 2020. His will, executed March 4, 1997, left his estate to his daughter, Petitioner herein, who was also named as executrix; it mentioned, but omitted, his son; and it omitted, but did not mention, his spouse at 2 that time, Deborah E. Thumma, Respondent herein. The testator and Respondent had married 3 about three years prior to execution of the will; Respondent filed a divorce complaint against the 4 testator about three weeks after execution of the will; and the testator and Respondent were 5 finally divorced about three years after execution of the will. 1 Death Certificate, filed January 28, 2020; Joint Exhibit 1 (Joint Stipulation of Facts), ¶11, Hearing, April 12, 2021 (hereinafter Stipulation of Facts, ¶__). 2 Last Will and Testament of Tom D. Thumma, filed January 28, 2020; see stipulation of Facts, ¶¶1, 6-8. 3 Stipulation of Facts, ¶1. 4 Stipulation of Facts, ¶7. In this regard, Respondent has postulatn March 4, 1997 when he executed the Will was dictated by the fact that his first marriage to Respondent was Control of Estate Assets\], ¶32, filed Januar Petition for Declaratory Judgment). 5 Stipulation of Facts, ¶8. 1 6 About 15 years later, on June 24, 2015, the testator and Respondent remarried, and the record does not suggest that they were estranged thereafter. T was probated on 7 January 28, 2020. A dispute has arisen between Respondent spouse and Petitioner executrix as 8 se statute. The issue presented by this case has been submitted to the court on a set of stipulated 9 facts. These facts are as follows: Thumma\] were married on February 14, 1994. 2. On March 4, 1997, Decedent executed a Last Will and Testament all my property, whether real or personal, wherever situate, including any property over which I may have a power of appointment to my daughter, Mazzatesta\] as Executrix. 5. Decedent did not name an alternate Personal Representative. 7. On March 24, 1997, Deborah filed a divorce complaint against Decedent. 8. On February 24, 2000, a final divorce decree was entered by the court. 9. On June 24, 2015, Decedent and Deborah remarried. 10. Decedent did not change his Will after remarriage to Deborah.. 11. On January 19, 2020, Decedent died a resident of Cumberland County. were granted to Petitioner by the Cumberland County Register of Wills on January 28, 2020. 6 Stipulation of Facts, ¶9. 7 Stipulation of Facts, ¶12. 8 See Petition for Declaratory Judgement and Possession and Control of Estate Assets, filed December 22, Petition for Declaratory Judgment); 20 Pa. C.S. §2507(3). 9 See N.T. ___, Hearing, April 12, 2021. A transcript of this proceeding had not been prepared as of the filing of this opinion. 2 13. Petition for Grant of Letters. 14. No appeal from probate was lodged. Deborah was entitled to claim a spousal elective share of t § 2507. 16. Deborah did not file a with the Cumbeourt pursuant to Pa.C.S.A. §2203 and §2210(a). 17. The right to a spousal election expired on July 28, 2020 pursuant to 20 Pa.C.S.A. §2201(b). 18. 20 Pa.C.S.A. §2507(2) and (3) provide that: the following circumstances, among others: (2) Divorce or pending divorce. Any provision in a spouse shall become ineffective for all purposes unless it appears from the will that the provision was intended to survive a divorce if the testator: (i) is divorced from such (3) Marriage. If the testator marries after making a will, the surviving spouse shall receive the share of the estate to which he would have been entitled had the testator died intestate, unless the will shall give him a greater share or unless it appears from the will that the will was made in contemplation of marriage to the Will was executed while married to Deborah and twenty days before Deborah filed for divorce. 20. Real property, with a mobile home and shed thereon, located at 233 North Middlesex Road, Middlesex Township, County of Cumberland, dated February 20, 1987 and recorded with the Cumberland County Recorder of Deeds at Book M32, Page 1009. 22. if her intention was to purchase or vacate the Property. 3 23. Deborah provided no response to Petitioner as to her intention regarding the Property. 24. In her New Matter filed with the Court, Deborah states that delay and expense would not be incurred if Petitioner, as Executrix, sold the Property to Deborah. times thereafter, Deborah has resided at the Property. 26. Deborah currently resides at the Property. 27. Petitioner, as Executrix, does not have access to or possession of the Property. 28. The assessed value of the property is $82,100 and the common level ratio for Cumberland County at the time of death was 1.08, which results in a rough estimate of $88,668 as the fair market value of the Property. 29. 20 Pa.C.S.A. §3311(a) states: take possession of, maintain and administer all the real and personal estate of the decedent, except real estate occupied at the time of death by an heir or devisee with the consent of each asset in his possession until it is sold or distributed, and, during the administration of the estate, shall have the right to maintain any action with respect to it and shall make all reasonable expenditures necessary to preserve it. The court may direct the personal representative to take possession of, administer and maintain real estate so occupied by an heir or a devisee if this is necessary to protect the rights of claimants or other parties. Nothing in this section shall affect the sell real estate occupied of $3,530.36 in Orrstown Bank Checking account # 31. Funeral expenses, debts of the Decedent and administrative expenses exceed $5,177.77. $1,642.66 plus interest for a total pay-off of $1,647.85. eath, Decedent and Deborah owned two jointly- Community Credit Union. 4 35 amount of $1,647.85 from a joint account which passed to her by operation of law. passed to her by operation of law. 37. The payoff of the car loan and payment of funeral bill by Deborah totaled $5,872.85. ank checking account statement shows that on January 28, 2020, at two different ATM locations, the maximum cash withdrawal of $500.00 was made four different times for total post-death, count. 40. 20 Pa. C.S.A. §301(a) provides as follows: Legal title to all personal estate of a decedent shall pass at his death to his personal representative, if any, as of the date of his death. 41. The Decedent owned tangible personal property located in and around the mobile home and in the shed located at the Property, including a 2012 Ford Escape automobile; a gun collection; ammunitions; antique collectables; family photographs; memorabilia; and tools, tractors, and mowers located at the Property. 10 and tangible property. DISCUSSION Statement of law. If the testator marries after making a will, the surviving spouse shall receive the share of the estate to which he would have been entitled had the testator died intestate, unless the will shall give him a greater share or unless it appears from the will that the will was made in contemplation of marriage to the surviving spouse. 20 Pa. C.S. §2507(3) (emphasis added). Under Penns is: . . . 10 Stipulation of Facts, ¶¶1-42. Excellent b Declaratory Judgement and Possession and Control of Estate Assets, filed April 22, 2021; Brief of Respondent in Opposition to Petition for Declaratory Judgment and Possession and Control of Estate Assets, filed May 3, 2021. 5 (3) If there are surviving issue of the decedent all of whom are issue of the surviving spouse also, the first $30,000 plus one-half of the balance of the intestate estate. (4) If there are surviving issue of the decedent one or more of whom are not issue of the surviving spouse, one-half of the intestate estate. 20 Pa. C.S. §2102(3), (4). It is, of course, a rule of statutory construction that, statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of In Estate of Murray, 145 Cal. App. 3d 324, 193 Cal. Rptr. 355 (1983), a surviving husband filed a petition in the estate of his late wife to revoke her will as to himself pursuant to If a person marries after making a will, and the spouse survives the maker, the will is revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless the spouse is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption can be received. Id. at 327, 145 Cal. Rptr. at 356. The facts of the Murray case, which are similar to those of the instant case, were recited by the California court as follows: Paul Murray and Bonnie I. Murray were married on August 29, 1972. . . . On July 31, 1978, Bonnie signed a petition to dissolve her marriage to Paul. On the same day, she executed her last will and testament naming her three sons as knowledge, omitted to provide for my heirs and I hereby generally and 11 \]. On October 23, 1979, the judgment of dissolution was entered. Bonnie and Paul lived separately for a short period. However, within a year of the dissolution, they reconciled their differences and remarried on September 3, 1980. Three days later Bonnie died of a brain tumor. Her will of July 31, 1978, was never revoked or changed. On October 14, 1980 the will was admitted to probate. Paul promptly filed a petition to revoke, claiming the will executed before the remarriage failed to provide for him and was, therefore, revoked as to him \[under the above-quoted 11 Estate of Murray, 145 Cal. App. 3d 324, 327, 193 Cal. Rptr. 355, 356-57 (1983). 6 pretermitted spouse statute\]. He claimed one- laws of intestate succession. . . . Id. at 326-27, 145 Cal. Rptr. at 356 (footnote omitted). In holding that the pretermitted spouse statute provided for the revocation of the that 12 and that reflects a strong public policy against disinheritance of a surviving spouse, who 13 is not provided in the premarital will of the testator. It stated thatemarriage to a former spouse may occur rarely\[,\] . . . the purpose of the statute (to prevent unintentional disinheritance of a surviving spouse) should apply equally to wills executed prior to a 14 In this regard, the court held that 15 whether providing for or disinheriting an after-acquired spouse, is a presumption which can be rebutted only by a clear manifestation of intent on the face of the 16 will, and 17 heir who becomes so by marriage. same day she filed for dissolution, may well have intended not to provide for Paul, as the 18 situation then presented itself, she did not specifically disinherit any future marriage partner. We find it difficult to believe that a future partner, other than Paul, could revoke the will as to himself, merely as an after-acquired spouse, yet that option is not available to 19 Paul when he remarries the same spouse. In summary, the court in Murray concluded that the pretermitted spouse statute legislated 12 Estate of Murray, 145 Cal. App. 3d 324, 328, 193 Cal. Rptr. 355, 357 (1983). 13 Estate of Murray, 145 Cal. App. 3d 324, 327, 193 Cal. Rptr. 355, 356 (1983). 14 Estate of Murray, 145 Cal. App. 3d 324, 329, 193 Cal. Rptr. 355, 358 (1983). 15 Estate of Murray, 145 Cal. App. 3d 324, 328, 193 Cal. Rptr. 355, 357 (1983). 16 Estate of Murray, 145 Cal. App. 3d 324, 328, 193 Cal. Rptr. 355, 357 (1983) (emphasis in original). 17 Estate of Murray, 145 Cal. App. 3d 324, 328, 193 Cal. Rptr. 355, 357 (1983). 18 Estate of Murray, 145 Cal. App. 3d 324, 329, 193 Cal. Rptr. 355, 357 (1983) (emphasis in original). 19 Estate of Murray, 145 Cal. App. 3d 324, 329, 193 Cal. Rptr. 355, 357 (1983). 7 the natural assumption that a decedent does not intend to disinherit an after- acquired spouse. We perceive no reason for a different rule merely because the after-acquired is also a former spouse. Remarriage resumed a relationship interrupted by a brief period of unhappiness leading to dissolution of the first marriage. The pretermitted heir statute applies to all marriages unless one of its 20 specific exceptions is fully satisfied. Application of law to facts. to recovery as a pretermitted spouse; it does not from the will \[sub judice\]that the will was made in contemplation of marriage to the surviving spouse. Nor does such a recovery appear to be inconsistent wMurray. Code, 21 as a pretermitted spouse, will be denied. ORDER OF COURT th AND NOW, this 7 Declaratory Judgement and Possession and Control of Estate Assets, filed December 22, 2020, and for the reasons stated in the accompanying opinion, the petition is denied, without prejudice to Petition such additional relief incidental to her duties as executrix, r Section 2507(3) of the Probate, Estates and Fiduciaries Code, as she deems appropriate. BY THE COURT, _______________ Carrie E. Hyams, J. 20 Estate of Murray, 145 Cal. App. 3d 324, 329, 193 Cal. Rptr. 355, 358 (1983). 21 Petitioner requests additional relief in the form of an order directing Respondent to vacate the realty and C.S.A. § of Estate Assets, at 10-11, filed April 22, 2021. o such further petition(s) as she deems appropriate, consistent with the ruling. 8 Scott Alan Mitchell, Esq. SAXTON & STUMP, LLC Suite 300 280 Granite Run Drive Lancaster, PA 17601 Attorney for Petitioner , Esq. 220 Pine Street Harrisburg, PA 17101 Attorney for Respondent 9