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  "name": "IN THE MATTER OF THE ESTATE OF PETER HEIMAN",
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    "judges": [
      "Judges HUNTER, JR., Robert N. and DILLON concur."
    ],
    "parties": [
      "IN THE MATTER OF THE ESTATE OF PETER HEIMAN"
    ],
    "opinions": [
      {
        "text": "STROUD, Judge.\nHeidi Venier, executrix of Peter Heiman\u2019s estate, appeals from an order entered 28 June 2013 by the superior court affirming an order of the Orange County Clerk of Superior Court and concluding that Audrey Layden, Mr. Heiman\u2019s wife, was entitled to an elective share of $25,970.35 from the estate. We reverse.\nI. Background\nPeter Heiman (\u201cdecedent\u201d) passed away on 7 July 2009. Prior to his death, he had executed a will naming Heidi Venier, his only child, the sole beneficiary and executrix of his estate. Mr. Heiman was survived by his wife, Ms. Layden, and Ms. Venier, his daughter from a prior marriage. Ms. Venier applied for and received letters .testamentary on 3 August 2009. As the surviving spouse, Ms. Layden petitioned for a year\u2019s allowance of $10,000 and an elective share of Mr. Heiman\u2019s assets.\nOn 20 October 2009, Ms. Venier, as executrix, filed a complaint for declaratory judgment against Fidelity Investments. She sought to have the estate designated as beneficiary for two accounts, an individual retirement account (IRA) and another investment account. Mr. Heiman had designated as beneficiary for these accounts a trust which was mentioned in a previously revoked will but never created. On or about 1 December 2009, Ms. Venier filed an inventory for decedent\u2019s estate. The inventory listed $377,795.45 in total assets. That amount included the IRA, which was valued at $38,908.99.\nBefore Ms. Layden\u2019s petition for elective share was heard by the Clerk of Superior Court, the parties voluntarily attended mediation in an effort to resolve the matter and entered into a settlement agreement, executed by Ms. Layden on 18 May 2010 and by Ms. Venier, as executrix, on 19 May 2010. The agreement stated that in consideration for the payment of $65,000 from the assets owned by decedent, \u201cthe parties accept full compromise, settlement and satisfaction of, and the final release and discharge of all actions, claims and demands whatsoever that each party may have against the other . . . .\u201d Under the agreement, both parties released any claims against the other and the estate agreed that Fidelity Investments would distribute the IRA, then worth approximately $40,000.00, directly to Ms. Layden, and that she would receive approximately $25,000.00 from another Fidelity account.\nAfter the agreement was signed, Ms. Venier dismissed her declaratory judgment action against Fidelity. But Ms. Layden refused to dismiss her petition for an elective share. She argued that \u201cthe alleged \u2018settlement\u2019 was procured by a material misrepresentation in the estate file.\u201d On 9 August 2012, the Orange County Clerk of Superior Court noticed his intent to rule on the elective share petition and heard the case on 4 December 2012.\nThe Clerk found that the existence of the Fidelity declaratory judgment lawsuit was not disclosed to Ms. Layden. He therefore concluded that the settlement agreement was unenforceable as a waiver of Ms. Layden\u2019s elective share rights. The Clerk found that the total net assets of decedent were valued at $363,851.50. It concluded that Ms. Layden was entitled to a one-quarter share, $90,962.88. It further found that Ms. Layden had already been paid $64,947.62 (the amount she had already received under the settlement agreement). It therefore awarded $25,970.35 to Ms. Layden.\nMs. Venier appealed to the superior court on 27 December 2012. By order entered 28 June 2013, the superior court fully adopted the findings of fact made by the Clerk of Superior Court and affirmed the order. Ms. Venier filed written notice of appeal to this Court on 24 July 2013.\nII. Standard of Review\nMs. Venier appeals from the superior court\u2019s order affirming the Clerk's order regarding Ms. Layden\u2019s elective share petition. The superior court fully adopted the clerk\u2019s findings of fact. Ms. Venier does not contest any of these findings on appeal. She only challenges the trial court\u2019s conclusion that Ms. Layden was not provided fair and reasonable disclosure of the property and obligations of decedent and that the settlement agreement was therefore unenforceable.\nThus, the only issue on appeal is one of law, which we review de novo. Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 517, 597 S.E.2d 717, 721 (2004). \u201cUnder a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the trial court.\u201d In re Estate of Pope, 192 N.C. App. 321, 331, 666 S.E.2d 140, 148 (2008) (citation, quotation marks, and brackets omitted), disc. rev. denied, 363 N.C. 126, 673 S.E.2d 129 (2009).\nIII. Full and Fair Disclosure\nThe issue for us to consider is a narrow one, but one of first impression in North Carolina: what does it mean for a surviving spouse to be \u201cprovided a fair and reasonable disclosure of the property and financial obligations of the decedent\u201d for purposes of waiver under N.C. Gen. Stat. \u00a7 30-3.6 (b)(2) (2009)?\nMs. Layden urges us to consider the required disclosure in light of the fiduciary duty she contends that Ms. Venier owed her as executrix of the decedent\u2019s estate. Ms. Venier denies that she owed Ms. Layden any such duty because Ms. Venier is a surviving spouse who has filed a claim for an elective share, not a beneficiary under the will. We need not decide this issue because even assuming that Ms. Venier owed Ms. Layden a fiduciary duty, the existence of the Fidelity lawsuit was not a material fact and failure to disclose it was not a breach of any duty owed\u2014-fiduciary or statutory.\nA. Elective Share Statutes\nThe elective share statutes are quite detailed and the calculation of an elective share is highly fact-dependent. In deciding what information Ms. Layden was required to disclose, it is necessary to understand the context. Therefore, before addressing the issue of waiver, we will lay out the calculation of elective share as applicable to this case.\nUnder N.C. Gen. Stat. \u00a7 30-3.1, et seq., a wife who survives her husband may choose to take an \u201celective share\u201d of the decedent\u2019s, assets rather than taking under the decedent\u2019s will. The \u201capplicable share\u201d of the decedent\u2019s assets to which a surviving spouse is entitled depends on whether the decedent had a prior spouse and whether the decedent is survived by children or other lineal descendants. N.C. Gen. Stat. \u00a7 30-3.1(a) (2009). A second or successive spouse of a decedent survived by one or more lineal descendants is entitled to a reduced share. N.C. Gen. Stat. \u00a7 30-3.1(b). Where the decedent is survived by a second spouse and one child, the applicable share is one-quarter of the decedent\u2019s total net assets. See id.\nThe term \u201ctotal net assets\u201d is defined by N.C. Gen. Stat. \u00a7 30-3.2(4) (2009) as the decedent\u2019s total assets reduced by any year\u2019s allowances \u201cto persons other than the surviving spouse and claims.\u201d \u201cTotal assets\u201d is in turn defined as the sum of the values listed in N.C. Gen. Stat. \u00a7 30-3.2(3f), which includes inter alia \u201c[benefits payable by reason of the decedent\u2019s death under any policy, plan contract, or other arrangement.\u201d N.C. Gen. Stat. \u00a7 30-3.2(3f)(d). Such benefits include \u201c[i]ndividual retirement accounts.\u201d N.C. Gen. Stat. \u00a7 30-3.2(3f)(d)(5).\nThe surviving spouse is entitled to her share of the total net assets reduced by the value of the net property passing to the surviving spouse. N.C. Gen. Stat. \u00a7 30-3.1(a). The \u201cnet property passing to the surviving spouse\u201d includes any property that passes by \u201cbeneficiary designation\u201d (except federal social security) reduced by the amount of any death taxes or claims payable out of such assets. N.C. Gen. Stat. \u00a7 30-3.2(2c),(3c)(a).\nTaking these statutes as a whole, if the decedent owns an individual retirement account at the time of his death, it is included in the decedent\u2019s total net assets for purposes of calculation of the elective share. If someone other than the surviving spouse is the IRA beneficiary, then the elective share to which the surviving spouse is entitled will be her share of the total net assets\u2014including the IRA\u2014without any reduction in value. If, however, an individual retirement account owned by the decedent passes by beneficiary designation to the surviving spouse, her elective share will be reduced by the value of the IRA. In either case, the total value of the decedent\u2019s assets to which a surviving spouse is entitled is simply the applicable share of the total net assets of the decedent.\nA surviving spouse entitled to an elective share may waive her right in writing. N.C. Gen. Stat. \u00a7 30-3.6(a). However, \u201c[a] waiver is not enforceable if the surviving spouse proves that: (1) The waiver was not executed voluntarily; or (2) The surviving spouse or the surviving spouse\u2019s representative making the waiver was not provided a fair and reasonable disclosure of the property and financial obligations of the decedent....\u201d N.C. Gen. Stat. \u00a7 30-3.6(b).\nB. \u201cFair and Reasonable Disclosure\u201d\nHere, Ms. Layden does not truly argue that the settlement agreement was not a waiver of her elective share rights nor that the waiver was involuntary. Indeed, it is clear that the agreement was intended by all parties to fully settle Ms. Layden\u2019s elective share claim. The agreement between Ms. Venier, as executrix of the Heiman Estate, and Ms. Layden stated that it was intended to be the \u201cfinal release and discharge of all actions, claims and demands whatsoever that each party may have against the other.\u201d Such \u201cclaims and demands\u201d include Ms. Layden\u2019s claim for elective share.\nNevertheless, Ms. Layden contends that the agreement is unenforceable because Ms. Venier failed to provide \u201cfair and reasonable disclosure\u201d of decedent\u2019s assets under N.C. Gen. Stat. \u00a7 30-3.6(b). Ms. Layden further asserts that she relied, to her detriment, on the \u201cmisrepresentations\u201d of Ms. Venier and that therefore the waiver was unenforceable as a contract induced by fraud. Specifically, she contends that Ms. Venier concealed the existence of the estate\u2019s lawsuit against Fidelity. Regardless of whether the issue is considered as a matter of common law fraud or statutory application, if the fact Ms. Venier failed to disclose was immaterial, then the agreement would remain enforceable. See Harton v. Harton, 81 N.C. App. 295, 297, 344 S.E.2d 117, 119 (\u201cA cause of action for fraud [may be] based on ... a failure to disclose a material fact relating to a transaction which the parties had a duty to disclose.\u201d (citations omitted) (emphasis added)), disc. rev. denied, 317 N.C. 703, 347 S.E.2d 41 (1986).\n\u201cA fact is material[] if[,] had it been known to the party, would have influenced that party\u2019s decision in making the contract at all.\u201d Carcano v. JBSS, LLC, 200 N.C. App. 162, 176-77, 684 S.E.2d 41, 53 (2009). As in any other settlement negotiation, the material facts are those that allow the party to calculate her best alternative to a negotiated agreement and to understand the effect of the agreement.\nMs. Layden had two alternatives: to proceed with her claim for elective share and receive the amount as ordered by the Clerk of Court, or to enter into a settlement agreement with the estate. If the surviving spouse knows what property decedent owned and what financial obligations were owed, she can accurately calculate the share to which she would be entitled absent a settlement. If the amount of the \u201ctotal net assets\u201d of the estate is known, it is a simple matter to calculate 25% of this amount, and this amount is what the surviving spouse would receive as her elective share by order of the Clerk; the total amount paid to the surviving spouse by the estate would also be reduced by any sums which passed to her by \u201cbeneficiary designation,\u201d excluding the amount of any death taxes or claims payable out of such assets. N.C. Gen. Stat. \u00a7 30-3.2(2c),(3c)(a). But whether the funds are paid to the surviving spouse entirely by the estate or partially by the estate and partially as a direct distribution to the surviving spouse as beneficiary of an account, the amount received by the surviving spouse would be the same.\nHere, the existence of the lawsuit against Fidelity was not a material fact because it had no relevance to the calculation of the share of the decedent\u2019s total net assets to which Ms. Layden would be entitled. Decedent owned an IRA valued at $38,908.99. This asset was included in the total net assets owned by decedent, valued at $379,796.54, and disclosed on the Inventory for Decedent\u2019s Estate of 1 December 2009. The IRA was listed in the section of the Inventory for \u201cStocks and Bonds In the Sole Name of Decedent or Jointly Owned Without Right of Survivorship\u201d and was identified as a \u201cFidelity Traditional IRA\u201d with the correct account number listed and the value stated as $38,908.99. The only difference in the Inventory, had the IRA been listed correctly, would be that it would have been listed under Part II of the form, instead of Part I, as \u201cStocks/Bonds/Securities Jointly Owned With Right Of Survivorship or registered in beneficiary form and automatically transferable on death.\u201d The value, which was the only relevant information for purposes of calculating Ms. Layden\u2019s elective share, would be the same.\nMs. Layden, as a second spouse to a decedent with one living child, was entitled to one quarter of decedent\u2019s total net assets. This sum could easily be calculated at mediation based upon the values of the decedent\u2019s property which had all been disclosed, although some expenses, such as the administrative costs, could only be estimated. Ultimately, the trial court found that there were $15,945.04 in administrative costs and reduced the total net assets by that amount, resulting in total net assets of $363,851.50. Ms. Layden was entitled to a one-quarter share, $90,962.88. Ms. Layden could have calculated this amount based on the information provided to her by Ms. Venier.\nEven if the IRA had been distributed to Ms. Layden prior to the mediation, based upon her status as the default beneficiary, the total net assets would have still been the same and Ms. Layden would still be. entitled to $90,962.88 from those assets. But she would not be entitled to receive $90,962.88 in addition to the full value of the IRA. Her elective share would be reduced by the value of the IRA, $38,908.99, as the Clerk correctly determined. So, no matter which party is designated the beneficiary of the IRA, the total value of the assets to which Ms. Layden would have been entitled remains the same. Given the information provided, Ms. Layden fully knew the amount to which she would be entitled if she declined to settle the dispute. She settled it nonetheless.\nIndeed, it may seem odd that Ms. Layden and Ms. Venier had such a heated dispute regarding the seemingly simple mathematical calculation of this elective share claim that nearly a year passed before it was resolved at mediation, an additional two years before being heard by the Clerk, and that this appeal would be before this Court nearly five years after the decedent\u2019s death. The reasons are not apparent above because of the single legal issue presented on appeal, but before the Clerk and trial court, the reasons were clear. Essentially, tragic circumstances surrounded decedent\u2019s death, and relations between Ms. Layden, as his second wife, and Ms. Venier, his daughter, were acrimonious. Because of these circumstances, Ms. Venier sought to prevent Ms. Layden from claiming an elective share. Decedent and Ms. Layden had been in the process of negotiating a separation agreement when he died.\nBefore the trial court, Ms. Venier summarized her argument as follows:\nAs a matter of fundamental fairness, Mr. Heiman and Ms. Layden had a deal; the terms were certain, both of them were acting in accordance with these terms, and for all intents and purposes the deal was complete but for their signatures and the subsequent payment of a modest sum of money. Beyond its sheer gall and hypocrisy, it is not merely wrong, it\u2019s a travesty that Ms. Layden should lay claim to a quarter of Mr. Heiman\u2019s estate on the basis of a short, late in life, unhappy marriage that ended in separation and suicide, when she had already agreed to waive any claim to the estate. The Court must not allow such an injustice to occur.\nAlthough Ms. Venier\u2019s attempts to avoid the elective share were unsuccessful and she does not challenge Ms. Layden\u2019s entitlement to an elective share on appeal, there were other disputed issues existing at the time of the mediation. In fact, the value of the decedent\u2019s estate may have been the only undisputed issue in the settlement negotiations. Viewed in this light, Ms. Layden\u2019s agreement to settle the elective share claim for a bit less than the full amount of the statutory share\u2014where the value of the total net estate was known\u2014is quite reasonable.\nThe Fidelity lawsuit, as discussed above, solely concerned the proper beneficiary of the account. It did not affect the ownership of the account or its value\u2014it was owned by the decedent at his death and that fact is undisputed. It had no bearing on the calculation of the share to which Ms. Layden was entitled, so we see no reason that disclosure of that fact would have affected in any way Ms. Layden\u2019s decision to settle. Ms. Layden has not claimed that any other material fact had been concealed. Moreover, Ms. Venier, as executrix, fully performed her part of the negotiated agreement, allowing two of the Fidelity accounts to pass to Ms. Layden. Ms. Layden, by contrast, failed to perform her contractual duties by refusing to dismiss her elective share petition.\nGiven the immateriality of the Fidelity lawsuit to the calculation of an elective share, we conclude that Ms. Venier fully and fairly disclosed all material information to Ms. Layden. Ms. Layden was fully aware of all of the decedent\u2019s assets and liabilities when she decided to waive her right to an elective share and to enter into the settlement agreement. The settlement agreement constituted a knowing and voluntary waiver of Ms. Layden\u2019s elective share rights. We therefore hold that the superior court erred in concluding that the settlement agreement was not an enforceable waiver of Ms. Venier\u2019s right to an elective share. We reverse the trial court\u2019s order affirming that of the Clerk of Superior Court.\nIV. Conclusion\nFor the foregoing reasons, we conclude that the existence of the Fidelity lawsuit was not a material fact. Therefore, Ms. Venier\u2019s failure to disclose its existence does not m\u00e1ke the settlement agreement unenforceable. We hold that the superior court erred in concluding that the agreement was not an enforceable waiver of Ms. Layden\u2019s elective share rights. We therefore reverse its order affirming the order entered by the Clerk of Superior Court.\nREVERSED.\nJudges HUNTER, JR., Robert N. and DILLON concur.\n. According to the brief filed by the Estate in the appeal to the superior court, due to the \u201cthe lapse of the Heiman Trust as the designated beneficiary,\u201d the \u201cdefault beneficiary designation\u201d for the IRA was the surviving spouse, Ms. Layden. We are unable to discern from the record how or why the \u201cdefault beneficiary\u201d of the IRA was not included as a party to the declaratory judgment action regarding disposition of the IRA, but she was not.\n. Or vice-versa.\n. Ms. Layden does not contend, and the record does not reflect, any \u201cdeath taxes or claims payable out of\u2019 the IRA assets, so for our purposes the only relevant number is the total value of the IRA which passed to Ms. Layden.\n. In addition, Ms. Layden was fully aware, based upon documents filed in this matter, that Ms. Venier was seeking to have any rights that she may have related to her marriage to decedent eliminated on a theory of equitable estoppel.",
        "type": "majority",
        "author": "STROUD, Judge."
      }
    ],
    "attorneys": [
      "Richard Bircher and Russell J. Hollers III, for petitioner-appellee.",
      "Levine & Stewart, by James E. Tanner III,for respondent-appellant."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF THE ESTATE OF PETER HEIMAN\nNo. COA13-1339\nFiled 15 July 2014\nWills\u2014elective share rights\u2014waiver\u2014fair and reasonable disclosure of property\nThe superior court erred in a wills case by concluding that an agreement between decedent\u2019s daughter (and executrix of the estate) and wife was not an enforceable waiver of the wife\u2019s elective share rights. Decedent\u2019s wife was provided fair and reasonable disclosure of the property and obligations of decedent\u2019s estate. The existence of a lawsuit filed by the estate against Fidelity was not material because it had no relevance to the calculation of the share of the decedent\u2019s total net assets to which decedent\u2019s wife was entitled.\nAppeal by Executrix from Order entered 28 June 2013 by Judge Robert H. Hobgood in Superior Court, Orange County. Heard in the Court of Appeals 10 April 2014.\nRichard Bircher and Russell J. Hollers III, for petitioner-appellee.\nLevine & Stewart, by James E. Tanner III,for respondent-appellant."
  },
  "file_name": "0053-01",
  "first_page_order": 63,
  "last_page_order": 71
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