Wednesday, December 17, 2014
In Ferguson v. Critopoulos, the Alabama Supreme Court held that a will beneficiary met the burden to show that the decedent provided for spouse outside the will. The decedent’s will, executed nine years before his second marriage, gave his residuary estate to his first spouse who predeceased him, and made her three children alternate beneficiaries. After her death, he remarried but did not change his will. His surviving spouse then claimed an omitted-spouse’s share under a statute giving an intestate share to the spouse “unless it appears from the will that the omission was intentional or the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably proven.” Ala. Code § 43–8–90. The trial court held that the intent was not proven, and the supreme court reversed, setting out guidelines for determining when a transfer outside of a will is in lieu of a testamentary provision. In this case, the testator changed the beneficiary of insurance policies and retirement accounts to the new spouse and considered changing his will but did not, all of which showed that the testator provided for the spouse outside of the will. Ferguson v. Critopoulos, No. 1130486, 2014 WL 4666935 (Ala. Sept. 19, 2014).