Month: May 2020

No, not in the case of Sandra Flora Sneed Larsen v. Pamela Larsen Stack, et al., Record No: 190832 (2020) where the Supreme Court of Virginia upheld the trial court’s decision that the will did not create a life estate, but did give the surviving spouse the right to reside in the house and access the entire property until she was no longer able to do so.

In Larsen, the two surviving children of the decedent filed a case for declaratory relief against the surviving spouse, their stepmother.  The decedent’s will gave the farm and house to his children, subject to his wife’s “right to reside in [the] home . . . for so long as she is physically and mentally able to do so.”   In addition, the surviving spouse was to receive rental income from a cell phone tower on the property.  In the next section of the will, the testator gave a life estate in other real estate to his surviving spouse with a remainder interest to his children.

The circuit court judge held that the language of the will regarding the farm was ambiguous, and therefore allowed parol evidence – testimony from the attorney who drafted the will.  The attorney testified that it was the testator’s intent to allow his wife to live on the property until her condition deteriorated to the point that she would go into a nursing home, and that he did not provide for any greater property rights in order to maintain her eligibility for Medicaid (which will pay for unskilled care and nursing home costs while Medicare will not.)  The judge held that the will did not create a life estate, but did give the surviving spouse something less – the right to reside on the property and access to all the property for so long as she was physically and mentally able to do so. 

The surviving spouse appealed the adverse declaratory judgment to the Supreme Court of Virginia with three assignments of error: 1. The circuit court judge erred in deciding the will did not create a life estate; 2. The circuit court judge erred in deciding the will gave the decendent’s children access to the property while she was alive; and 3. The circuit court judge erred in allowing parol evidence of the testator’s intent.

The Supreme Court of Virginia first recognized that the intent of the testator controlled the interpretation of the will, that it was the ““polar star” to guide and direct the interpretation of the will,” citing Feeney v. Feeney, 295 Va. 312, 318 (2018) quoting Roller v. Shaver, 178 Va. 467, 472 (1941).  Next the Court recognized that the trial court must review the whole will and apply the plain meaning rule in determining the testator’s intent.  The Court then noted that  extrinsic or parol evidence could properly be allowed if the language of the will is ambiguous, capable of more than one interpretation, citing Gaymon v. Gaymon, 258 Va. 225, 230 (1990). 

In this case, the Court upheld the trial court’s decision that a life estate had not been created because (1) the drafting attorney testified that that was not the testator’s intent; (2) the testator had expressly given a life estate in another parcel of property in the following section, demonstrating that this grant must be something different; and (3) the grant of rents from the cell phone tower only for as long as the surviving spouse resided in the house contradicted the granting of a life estate in the farm property.  The Supreme Court also upheld the trial court’s decision that the surviving spouse’s right to possession was not exclusive, but rather concurrent with the rights of access by the surviving children, as exclusive possession was not expressed.  The Court recognized that the only limitation on the surviving children’s rights to access was that the widow’s right required that she be free from molestation and interference by them, citing its prior decision in White v. White, 183 Va. 239 (1944).

Finally, the Court noted that parol evidence was properly allowed by the trial court judge in Larsen, as it was necessary to determine the scope of the surviving spouse’s rights.  In a will case, a court may allow parol evidence to determine the “quantum of interest which is to pass by will”, Parsons v. Fitchett, 148 Va. 322, 329 (1927).  In particular, this will did not clearly indicate whether the surviving spouse’s interest was limited to the dwelling unit or if she had the right to use the entire property.  The drafting attorney’s testimony was necessary to resolve the ambiguities in the will.

The Larsen case illustrates the importance of being very specific in the provisions of a will with respect to the scope or quantum of rights granted if the bequests or devices are not absolute or unconditional.

Virginia Code §64.2-308 provides that a spouse who willfully deserts and abandons his or her spouse loses his or her statutory rights under intestate succession, and rights to claim an elective share, or to claim exempt property, the family allowance, or the homestead allowance.  By implication, an estranged spouse who has not willfully deserted or abandoned his or her spouse may still enjoy the legal rights of a surviving spouse in the estate of the deceased spouse.  What about the rights of an estranged spouse who signs a written separation agreement with the typical general waiver of claims found in Virginia?

The Supreme Court of Washington held that such a waiver did terminate the spouse’s rights in a case of first impression for that state, In the Matter of the Estate of Michael Petelle, No: 97463-02, writ granted 451 P.3d 334 (2019) affirming the published decision of its court of appeals.  While the State of Washington, a community property state, differs from the Commonwealth of Virginia, an equitable distribution state, in marital property rights, the opinion may still provide persuasive authority in Virginia, as Washington nevertheless allows couples to alter the 50-50 division of marital property by a written separation agreement.

In contrast to Virginia’s course of descents in Virginia Code §64.2-200, the State of Washington in its RCW 11.04.015, gives a surviving spouse all of the net community estate, but only three quarters of the net separate estate if the decedent has surviving parents (A surviving spouse’s share in Virginia is not affected by surviving parents of the decedent).  The surviving estranged spouse in the Petelle case attempted to realize this statutory inheritance by qualifying as administrator and probating her deceased husband’s estate until she was stopped by the decedent’s mother.  While separated, the spouses in Petelle had signed a comprehensive, written separation agreement which included a general waiver of claims, as is typical in Virginia.  Although the general express waiver did not specifically mention rights under intestate succession, the Supreme Court noted that the separation agreement included a provision that the agreement was a full and final settlement of all marital and property rights, as is also typical in Virginia separation agreements.  Further, the court noted that the rights to intestate succession is a result of marital status, which would be encompassed in the waiver of all marital and property rights.  Finally, the court noted that the separation agreement included a provision that the agreement would survive the death of either party and be enforceable by heirs or legal representatives of the estate, also typical in Virginia separation agreements.  The court did not accept the surviving spouse’s arguments that she could only lose her rights through the disclaimer process or that the alleged reconciliation of the parties restored her statutory rights.  The court concluded by restating its prior decision that a general waiver was sufficient to extinguish rights, without specifically listing each and every right waived.