Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

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Wednesday, October 4, 2006

Trust Amendment and the Omitted Spouse

The court in In re Estate of Prestie, 122 Nev. 70, 138 P.3d 520 (Nev. 2006), dealt with the issue of whether an amendment to an inter vivos trust could rebut the presumption that a will is revoked as to an unintentionally omitted spouse.
   

Maria and W.R. Prestie were married in Las Vegas in 1987, but they were divorced two years later.  Over the years, they maintained a good relationship, and in 2000, when W.R. became ill, Maria moved into his home to take care of him.
   

In 2001, W.R. amended an inter vivos trust he had established in 1994 to provide for a life estate for Maria in his condominium.
   

Shortly thereafter, the couple was married.   W.R. passed away nine months later. W.R.'s son, the trustee and beneficiary of the trust, said that W.R.'s amendment to the inter vivos trust rebutted the presumption of revocation of W.R.'s will as to Maria.
   

The pertinent Nevada statute provided for surviving spouses unintentionally omitted from their spouse's will:
   

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 a way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation shall be received.
 

The court concluded that "that an amendment to an inter vivos trust cannot serve to rebut the presumption that a will is revoked as to an unintentionally omitted spouse."  "[T]he only evidence admissible to rebut the presumption of revocation for the purposes of NRS 133.110 is a marriage contract, a provision providing for the spouse in the will, or a provision in the will expressing an intent to not provide for the spouse." [citation omitted]. Since there was not a marriage contract, and there was nothing in the will providing for the spouse or expressing an intent not to do so, the will was revoked as to Maria.

http://lawprofessors.typepad.com/trusts_estates_prof/2006/10/trust_amendment.html

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