Opinion
A162506
04-28-2023
KAREN L. BANKHEAD, as Trustee, etc., Plaintiff and Respondent, v. ANTHONY L. HYDEN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. P1801747)
Jackson, P. J.
This appeal challenges the trial court's grant of summary judgment in favor of plaintiff Karen L. Bankhead, trustee of the Bankhead Trust, and against defendant Anthony L. Hyden, the surviving spouse of her deceased mother and the initial trustee, Lillian L. Bankhead-Hyden. Defendant contends the probate court erred in finding that (1) he was not an omitted spouse within the meaning of Probate Code section 21610 and, thus, (2) he was not entitled to a share of Lillian's estate assets (see § 21611). On appeal, defendant asks this court to reverse the summary judgment against him and determine as a matter of law that he is an omitted spouse entitled to a one-third share of Lillian's estate assets. We disagree and affirm.
For ease of reference, we refer to Lillian L. Bankhead-Hyden as Lillian, intending no disrespect.
Unless otherwise stated, all statutory citations herein are to the Probate Code.
Since Lillian's estate assets consisted of her separate property and she had more than one surviving child, her surviving spouse would be entitled to a one-third share under section 6401, subdivision (c)(3)(A).
FACTUAL AND PROCEDURAL BACKGROUND
The facts of this case are undisputed. In 1986, Lillian, an unmarried woman with five children, executed two testamentary instruments: (1) a revocable living trust, the Bankhead Trust (trust), naming herself as initial trustee and conveying to herself as trustee real property located at 26 Lee Avenue in San Francisco, and (2) a will leaving the residue of her estate to her children in equal shares.
Lillian owned this real property as her sole and separate property since at least November 30, 1973.
In December 2010, Lillian married defendant. She died in May 2017 without amending her testamentary instruments or otherwise providing for defendant. At the time of Lillian's death, the main trust asset was her real property at 26 Lee Avenue, where she lived with defendant. In accordance with the testamentary instruments, plaintiff, Lillian's daughter, became trustee of the trust and the real property at 26 Lee Avenue was transferred to her as trustee.
Defendant subsequently refused plaintiff's request to vacate 26 Lee Avenue. As such, in the fall of 2018, plaintiff filed a second unlawful detainer action to evict him. Before trial, the parties reached a settlement agreement wherein defendant agreed to vacate 26 Lee Avenue within 30 days in exchange for the right to a 33-percent share of the proceeds from the anticipated sale of the real property as Lillian's omitted spouse, less his share of trust administration costs.
Plaintiff filed an earlier unlawful detainer action against defendant in February 2018. This action was dismissed with prejudice after the court granted defendant's motion for summary judgment.
On October 29, 2018, plaintiff petitioned the probate court for approval of the settlement agreement. However, on December 31, 2018, another trust beneficiary, Cynthia Phipps, plaintiff's sister, filed an objection to its approval on the grounds that Lillian's will contains a disinheritance provision that precludes defendant from receiving a share of the estate. On June 18, 2019, the probate court sustained Phipps's objection and entered an order declining to approve the settlement agreement.
On December 3, 2019, defendant moved for summary adjudication, seeking a ruling that he was an omitted spouse within the meaning of section 21610, as a matter of law. On August 27, 2020, the probate court denied his motion.
On September 22, 2020, plaintiff filed the operative summary judgment motion. Plaintiff argued, based on the disinheritance provision in Lillian's will that, as a matter of law, defendant was not entitled to a share of the estate assets as an omitted spouse.
On March 3, 2021, the probate court granted summary judgment for plaintiff, prompting this timely appeal.
DISCUSSION
The probate court granted summary judgment in plaintiff's favor after finding as a matter of law that defendant was not entitled to recover assets from Lillian's estate as an omitted spouse (§ 21610). On appeal, defendant's sole contention is that this finding was legally erroneous.
I. The Statutory Framework.
The omitted spouse presumption, codified in section 21610, provides in relevant part that: "Except as provided in Section 21611, if a decedent fails to provide in a testamentary instrument for the decedent's surviving spouse who married the decedent after the execution of all of the decedent's testamentary instruments, the omitted spouse shall receive a share in the decedent's estate, consisting of the following property in said estate: [¶] . . . [¶] (c) A share of the separate property of the decedent equal in value to that which the spouse would have received if the decedent had died without having executed a testamentary instrument . . . ." This statute reflects a" 'strong public policy disfavoring disinheritance of a surviving spouse under the terms of a premarital will in which the testator has otherwise failed to provide.'" (Estate of Allen (1993) 12 Cal.App.4th 1762, 1765 [discussing former § 6560, the predecessor statute to § 21610, repealed in 1997].)
"(a) For purposes of this part, 'decedent's testamentary instruments' means the decedent's will or revocable trust. "(b) 'Estate' as used in this part shall include a decedent's probate estate and all property held in any revocable trust that becomes irrevocable on the death of the decedent." (§ 21601.)
Section 21611 identifies three circumstances under which an omitted spouse is not entitled to a share of the decedent's estate under section 21610. Relevant here, the spouse is not entitled to a share of the estate if it is established that the "decedent's failure to provide for the spouse in the decedent's testamentary instruments was intentional and that intention appears from the testamentary instruments." (§ 21611, subd. (a).)
Plaintiff, as the party moving for summary judgment, had the burden of proving that there were no genuine triable issues of fact such that she was entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845 (Aguilar).) Applying this rule here, as the proponent of the exception to the omitted spouse presumption under section 21611, subdivision (a), plaintiff had the burden of proving by a preponderance of the evidence the foundational facts that Lillian intentionally excluded defendant from her inheritance and that her intention appears from the testamentary instruments. (Estate of Franco (2023) 87 Cal.App.5th 1270, 1283, fn. 7.) "If a party 'who would bear the burden of proof by a preponderance of evidence at trial moves for summary judgment,' the party 'must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not.' (Aguilar, supra, at p. 845.)" (Ibid.)
On appeal, we review the issue of whether defendant qualifies as an omitted spouse under section 21610 de novo, both because this appeal arises from a summary judgment and because the issue presents a pure question of law. (Morris v. Paul Revere Life Ins. Co. (2003) 109 Cal.App.4th 966, 973.)
II. Application of the Law to the Undisputed Facts.
Below, the probate court found the language of the testamentary instruments "unambiguous" in that at the time of their execution, "[Lillian], then unmarried, intended to disinherit any future spouse from her estate plan. [Lillian] explicitly stated that she was not married and that any spouse would be expressly disinherited. (Will, §§ Second, Seventh, subd. (A).)"
Defendant disputes the court's finding that Lillian intentionally failed to provide for him in her testamentary instruments. He reasons that the "the only contemplated spouse" when Lillian executed her will was "her ex-husband and father of her children," not him, whom she married 24 years later. We reject this argument.
The disinheritance provision in Lillian's will states: "Any person not mentioned herein who would have been entitled to share in my estate as a spouse, child, or child of a deceased child if I had died intestate and for whom no provision is made herein is expressly disinherited." (Italics added.)
As the probate court pointed out, Lillian's will also states that at the time of its execution Lillian was an unmarried woman with five children. As to those five children, Lillian stated her clear intention that they equally share in her estate assets and that no unmentioned person, including a spouse, be entitled to share in those assets. Under these circumstances, the term "spouse" in her will necessarily refers to a future spouse, as she had no current spouse. To interpret it otherwise, as defendant would have us do, would require us to read the term "spouse" out of Lillian's will entirely or, alternatively, to read into the will a restriction limiting the term "spouse" to a "past spouse." The law disfavors both of these approaches. (Estate of Allen, supra, 12 Cal.App.4th at p. 1769 [an interpretation of an instrument that "renders language to be mere surplusage is to be avoided"]; Dameron Hospital Assn. v. AAA Northern California, Nevada &Utah Ins. Exchange (2014) 229 Cal.App.4th 549, 569 [" 'Our function is to determine what, in terms and substance, is contained in the [instrument], not to insert what has been omitted' "].)
Our construction of Lillian's will comports with longstanding case law holding that so long as a will shows the possibility of future marriage, it need not disclose the decedent's contemplation of marriage to a particular person. (Estate of Bridler (1958) 165 Cal.App.2d 486, 488 [" '[Although] a testator need not make provision for . . . a [contemplated] spouse, he is required to bear in mind the possibility of a subsequent marriage and the serious changes in domestic relations resulting therefrom' "]; Estate of Duke (1953) 41 Cal.2d 509, 514 [a testator can provide for or disinherit a future spouse in general terms or as the member of a class]; Estate of Lunn (1961) 197 Cal.App.2d 848, 853 [same]; Estate of Katleman (1993) 13 Cal.App.4th 51, 56, 60-61 [a later acquired spouse's pretermission claim is defeated where it is clearly established that when the will was executed, "the testator: (1) contemplated the possibility of a later marriage and (2) intended to disinherit the later acquired spouse"; however, use of the terms "heirs" and "heirs at law" in the will's disinheritance clause was not sufficient to disinherit the later acquired spouse].)
Accordingly, we affirm the probate court's judgment that defendant is not an omitted spouse within the meaning of section 21610. In moving for summary judgment, plaintiff successfully overcame the omitted spouse presumption by establishing as a matter of law that, under section 21611, subdivision (a), Lillian intentionally excluded him from her inheritance and that her intention appears from her testamentary instruments. Summary judgment therefore stands. (Aguilar, supra, 25 Cal.4th at p. 845; Estate of Franco, supra, 87 Cal.App.5th at p. 1283, fn. 7.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Burns, J. Langhorne, J. [*]
[*] Judge of the Superior Court of Napa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.