Toebe v. Balyk
Filed 8/20/12 Toebe
v. Balyk CA3
NOT
TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Shasta)
----
CAROLE L. TOEBE, as Trustee,
etc.,
Plaintiff and Respondent,
v.
YOLANDA PULIDO-MELLADO BALYK,
Defendant and Appellant.
C067572
(Super.
Ct. No. 2315)
Generally, if a
person makes a will or creates a revocable trust, then marries, then dies
without having modified the will or revocable trust after the marriage, the
surviving spouse is entitled to a share of the estate, regardless of the terms
of the will or revocable trust. (Prob.
Code, § 21610; hereafter, unspecified code citations are to the Probate Code.) One exception to this general rule applies
if, before dying, the decedent gave the surviving spouse something and meant
that gift to take the place of the surviving spouse’s share of the estate. (§ 21611, subd. (b); hereafter § 21611(b).)
In this case, the
decedent created a revocable trust, then married, then died without modifying
the revocable trust to provide for the surviving spouse. The decedent intended to give the surviving
spouse an interest in the decedent’s separate property residence, but no
transfer was made during the decedent’s lifetime.
A superior court
commissioner concluded that the decedent “was giving” the surviving spouse an
interest in the residence and, therefore, the surviving spouse was not entitled
to a share of the estate under section 21610.
We reverse. Evidence of the
decedent’s uneffectuated intent to give the surviving spouse an interest in the
residence did not invoke the section 21611(b) exception to the general rule
that the surviving spouse is entitled to a share of the estate.
STATUTORY CONTEXT
Section 21610
allows an omitted spouse to share in the decedent’s estate:
“
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:
“(a) The one-half
of the community property that belongs to the decedent under Section 100.
“(b) The one-half
of the quasi-community property that belongs to the decedent under Section 101.
“(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, but in no event is the share to be more than one-half
the value of the separate property in the estate.” (§ 21610, italics added.)
Section 21611
prevents an omitted spouse from sharing in the decedent’s estate in three
situations (the second of which is applicable to this case):
“The spouse shall
not receive a share of the estate under Section 21610 if any of the following
is established:
“(a) 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.
“(b)
transfer outside of the estate passing by the decedent’s testamentary
instruments and the intention that the transfer be in lieu of a provision in
said instruments is shown by statements of the decedent or from the amount of
the transfer or by other evidence.
“(c) The spouse
made a valid agreement waiving the right to share in the decedent’s
estate.” (§ 21611, italics added; see
also Estate of Dito (2011) 198
Cal.App.4th 791, 801-802 [omitted spouse entitled to share of estate if no
exception applies].)
BACKGROUND
In 1998, the
decedent, Timothy Balyk, and his first wife, Marda Balyk, amended a previously
created revocable trust, the Balyk Family Living Trust. Timothy and Marda transferred to the trust
their assets, including their Castro Valley residence, a
San Lorenzo apartment complex, and an annuity. The beneficiaries of the trust were their
children: Carole Toebe (trustee and
plaintiff), Glenn Balyk, and Jo Ann Lemas.
Timothy also executed a will in 1998, giving his remaining assets to the
trust.
Marda passed away
in 1999, and Timothy married Yolanda Pulido-Mellado (defendant) in 2003.
Timothy died in
June 2009, after six years of marriage to Yolanda. After he married Yolanda, Timothy made no
changes to the revocable trust, which was last amended in 1998, or to the will. The value of property contained in the trust,
plus Timothy’s separate property assets not transferred to the trust before his
death, is more than $1.1 million. The
most valuable assets were Timothy’s Castro Valley residence, a San Lorenzo
apartment complex, and an annuity from Aviva.
At the time of Timothy’s
death, he and Yolanda had $547.53 in joint tenancy bank accounts. Yolanda received a one-time $2,400 death
benefit from Timothy’s union. And she
receives $1,500 monthly in Social Security survivor benefits.
Before he died,
Timothy told Yolanda that he intended to provide for her. Yolanda testified that Timothy told her she
could continue to live in the Castro Valley residence. Timothy also told her that the Castro Valley
residence would go to her and Timothy’s son Glenn and that the San Lorenzo
apartment complex would go to his daughters, Carole and Jo Ann. Carole testified that Timothy told her
Yolanda could stay in the residence with Glenn’s permission.
Carole filed a
petition to determine Yolanda’s rights under the trust and will. She alleged that the marriage of Timothy and
Yolanda was a sham and that no property should pass to Yolanda as an omitted
spouse. Yolanda objected to the
petition, claiming that she is entitled to a portion of the estate under
section 21610.
The matter was
tried before a superior court commissioner.
The commissioner ruled that the marriage was not a sham and that Yolanda
was an omitted spouse. Concerning the
property of the estate, the commissioner found that the section 21611(b)
exception applied, preventing Yolanda from receiving a share of Timothy’s
estate under section 21610. The
commissioner stated: “Timothy has in
fact provided for Yolanda by his comments to her that he wanted her to share
the house with Glen[n]. The court finds
that he was giving her a one-half life estate in the residence.” The commissioner valued this “one-half life
estate” at $85,754.
DISCUSSION
On appeal, Yolanda
contends that the commissioner erred
by concluding that section 21611(b) applies in this case
because (1) Timothy did not “provide[] for [her] by transfer” and (2) the
one-half life estate awarded to Yolanda is not “outside of the estate passing
by the decedent’s testamentary instruments.”
We need not discuss the second contention because the first is dispositive;
Timothy did not provide for Yolanda by transfer.
Section 21611(b)
applies when “[t]he decedent provided for the spouse by transfer . . . .” The plain language of this provision requires
the decedent to actually transfer property.
It does not apply when the decedent meant to, or intended to, transfer
property, but did not. Here, it cannot
be disputed that Timothy did not transfer a one-half life estate in the Castro
Valley residence to Yolanda. He talked
about it, but he never did it.
Therefore, the commissioner erred by concluding that section 21611(b)
applied.
It appears the
commissioner may have been confused by the intent language found later in
section 21611(b). That language requires
that, to apply section 21611(b), there must be evidence that the decedent
intended the transfer to take the place of the omitted spouse’s share in the
estate: “[T]he intention that the
transfer be in lieu of a provision in said instruments [must be] shown by
statements of the decedent or from the amount of the transfer or by other
evidence.” (§ 21611(b).)
Assuming, without
deciding, that there was enough evidence to establish that Timothy intended the
transfer of an interest in the residence to take the place of Yolanda’s right
to share in the estate, that intent is irrelevant because Timothy never made
the transfer. Viewing the evidence in
the light most favorable to the order, the evidence was insufficient to sustain
the order because of the absence of evidence of a transfer of the interest in
the residence. (See Estate of Leslie (1984) 37 Cal.3d 186, 201 [sufficiency of evidence
standard].)
Carole attempts to
defend the commissioner’s decision by (1) noting that Yolanda also received the
one-time $2,400 union death benefit and monthly Social Security survivor
benefits and (2) arguing that the evidence of Timothy’s intent was
uncontradicted. Neither point supports
the order. First, while there was
evidence of the union death benefit and Social Security survivor’s benefits,
there was no evidence that Timothy knew of those benefits, let alone intended
to “transfer” those benefits to Yolanda in lieu of a share of his estate. And second, no amount of intent on Timothy’s
part makes up for the fact that he did not transfer a property interest in the
residence to Yolanda.
Yolanda asks this
court to reverse the commissioner’s order and grant her the relief she sought
“in its entirety.” While we hold that
section 21611(b) does not apply here and we therefore reverse the order,
granting all the relief Yolanda seeks is beyond the scope of this appeal. We therefore remand for further proceedings,
applying section 21610.
DISPOSITION
The order is
reversed, and the cause is remanded for further proceedings consistent with
this opinion. Yolanda is
awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
NICHOLSON , Acting P. J.
We concur:
HULL , J.
MAURO , J.
