Wills, Trusts & Estates Prof Blog

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

Sunday, January 20, 2019

Matters of Style: Spouse’s Elective Share Suit Dismissed for Naming the Wrong Party

WillNaming the correct party to a suit is one of the most elementary and necessary aspects to any litigation, and though it may appear to be a simple mistake, it can cause the entire case to come crashing down. 

In the appellate level court of Virginia, a wife that had been excluded from her husband's will found this out the hard way. After realizing the circumstance's of her late husband's will after it had been entered into probate, she filed a suit in circuit court seeking to claim her statutory elective share of his augmented estate. When a spouse is written out of a decedent spouse's will, some state's have statutes providing that the surviving spouse is entitled to a certain portion of the estate. The procedures to do so are very precise.

The wife was styled and brought against the Estate itself and did not include the administratrix, the fiduciary appointed to administer the Estate - but the wife did serve the administratrix. The Administratrix later made a motion to dismiss the lawsuit on the grounds that it was filed against the wrong party, and also as the statute of limitations had passed, not allow the wife to file a new suit against the administratrix. Wife argued the amending the complaint was more equitable remedy. The trial court ruled that naming the estate as the party was a nullifying offense, and the complaint could not be amended as there was no other party named. The appellate court affirmed the decision, as litigants have a duty to investigate the proper parties to sue or be sued, and all parties must be living.

See Brett Herbert, Matters of Style: Spouse’s Elective Share Suit Dismissed for Naming the Wrong Party, Estate Conflicts, January 14, 2019.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.

https://lawprofessors.typepad.com/trusts_estates_prof/2019/01/matters-of-style-spouses-elective-share-suit-dismissed-for-naming-the-wrong-party.html

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