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Keywords

contracttrustwilldivorce
contracttrustwillappellant

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In re Estate of Prestie, 122 Nev. 807, 138 P.3d 520

Facts

W.R. Prestie and Maria were married in 1987 but divorced two years later. After W.R. was diagnosed with macular degeneration, he moved to Las Vegas, where he purchased a condominium. In 1994, he executed a pour-over will and an inter vivos trust, neither of which provided for Maria. In 2001, W.R. amended the trust to grant Maria a life estate in the condominium and remarried her shortly thereafter. After W.R.'s death, Maria petitioned for a share of his estate, claiming the will was revoked as to her due to their marriage.

In 1994, W.R. simultaneously executed in California a pour-over will and the W.R. Prestie Living Trust (the inter vivos trust). The pour-over will devised W.R.'s entire estate to the trust. W.R.'s son, appellant Scott Prestie, was named both the trustee and a beneficiary of the inter vivos trust. Neither the will nor the inter vivos trust provided for Maria.

Issue

Whether an amendment to an inter vivos trust can rebut the presumption that a pour-over will is revoked as to an unintentionally omitted spouse.

Whether an amendment to an inter vivos trust can rebut the presumption that a pour-over will is revoked as to an unintentionally omitted spouse.

Rule

NRS 133.110 provides that if a person marries after making a will and the spouse survives the maker, the will is revoked as to the spouse unless provision has been made for the spouse by marriage contract or in the will.

NRS 133.110 provides for surviving spouses who are unintentionally omitted from their spouse's will: If a person marries after making a will and the spouse survives the maker, the will is revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless the spouse is provided for in the will, or in such a way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation shall be received.

Analysis

The court analyzed the language of NRS 133.110 and concluded that it does not allow for evidence of an amendment to an inter vivos trust to rebut the presumption of a will's revocation as to an unintentionally omitted spouse. The court emphasized that the only admissible evidence to rebut the presumption is a marriage contract, a provision in the will, or a provision expressing an intent not to provide for the spouse. Since W.R.'s will did not contain any such provisions, the court upheld the lower court's ruling.

Accordingly, we reject the notion that an amendment to a trust, which provides for the spouse, is admissible to rebut the presumption of a will's revocation. The plain language of NRS 133.110 dictates otherwise, and 'we will not engraft, by judicial legislation, additional requirements upon the clear and unambiguous provisions of NRS 133.110.'

Conclusion

The court affirmed the district court's order revoking W.R.'s will as to Maria, concluding that the amendment to the inter vivos trust could not rebut the presumption of revocation under NRS 133.110.

We conclude that an amendment to an inter vivos trust cannot serve to rebut the presumption that a will is revoked as to an unintentionally omitted spouse.

Who won?

Maria prevailed in the case because the court found that W.R.'s will was revoked as to her under Nevada law, which protects unintentionally omitted spouses.

Maria eventually petitioned the district court for, among other things, a one-half intestate succession share of W.R.'s estate on the ground that W.R.'s will was revoked as to her under NRS 133.110 (revocation of a will by marriage).

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