{ "id": 3784271, "name": "Vivan BELL, Petitioner-Appellant, v. The ESTATE OF Ralph M. BELL, Respondent-Appellee", "name_abbreviation": "Bell v. Estate of Bell", "decision_date": "2008-02-21", "docket_number": "No. 27,392", "first_page": "716", "last_page": "725", "citations": [ { "type": "official", "cite": "143 N.M. 716" }, { "type": "parallel", "cite": "181 P.3d 708" }, { "type": "parallel", "cite": "2008-NMCA-045" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "713 N.W.2d 194", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 8424878 ], "weight": 9, "year": 2006, "pin_cites": [ { "page": "195" }, { "page": "196" }, { "page": "198-99" }, { "page": "198" }, { "page": "195-96" }, { "page": "198" }, { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/nw2d/713/0194-01" ] }, { "cite": "2007-NMSC-053", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3692262 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0533-01" ] }, { "cite": "346 S.C. 53", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 223302 ], "weight": 3, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/sc/346/0053-01" ] }, { "cite": "104 N.M. 192", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594925 ], "weight": 11, "pin_cites": [ { "page": "194" }, { "page": "704" }, { "page": "194-95" }, { "page": "704-05" }, { "page": "192-93" }, { "page": "702-03" }, { "page": "194" }, { "page": "704" }, { "page": "194-95" }, { "page": "704-05" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0192-01" ] }, { "cite": "2001-NMCA-008", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352449 ], "weight": 12, "pin_cites": [ { "page": "\u00b6\u00b6 12-14" }, { "page": "\u00b6 5" }, { "page": "\u00b6 9" }, { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0093-01" ] }, { "cite": "2007-NMSC-044", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3692987 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0248-01" ] }, { "cite": "2006-NMSC-031", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3670086 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 17" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0030-01" ] }, { "cite": "151 P.3d 995", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2006, "pin_cites": [ { "page": "997", "parenthetical": "\"An omitted spouse statute's purpose is to prevent the unintentional disinheritance of the surviving spouse of a testator who marries after making a will and then dies without ever changing it.\" (internal quotation marks and citation omitted)" } ], "opinion_index": 1 }, { "cite": "136 Wash.App. 823", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 5582180 ], "year": 2006, "pin_cites": [ { "parenthetical": "\"An omitted spouse statute's purpose is to prevent the unintentional disinheritance of the surviving spouse of a testator who marries after making a will and then dies without ever changing it.\" (internal quotation marks and citation omitted)" } ], "opinion_index": 1, "case_paths": [ "/wash-app/136/0823-01" ] } ], "analysis": { "cardinality": 1076, "char_count": 35373, "ocr_confidence": 0.672, "pagerank": { "raw": 1.5878990297727953e-07, "percentile": 0.6815362594498753 }, "sha256": "f307646ddf242be1dbda6b388c1daf6118dab22030d5d86c326b59d8adb3247b", "simhash": "1:c32de2336034179d", "word_count": 5805 }, "last_updated": "2023-07-14T16:34:50.796486+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "I CONCUR: JONATHAN B. SUTIN, Chief Judge." ], "parties": [ "Vivan BELL, Petitioner-Appellant, v. The ESTATE OF Ralph M. BELL, Respondent-Appellee." ], "opinions": [ { "text": "OPINION\nCASTILLO, Judge.\n{1} This case is before us on interlocutory appeal from probate proceedings in the district court of Quay County. Petitioner-Appellant Vivan Bell (Mrs. Bell) is the surviving spouse of Ralph M. Bell (Decedent), who executed a will and created a revocable trust approximately five months prior to his marriage to Mrs. Bell. Neither the will nor the revocable trust mentions Mrs. Bell or Decedent\u2019s anticipated marriage to Mrs. Bell. Following Decedent\u2019s death, Mrs. Bell filed a petition for adjudication of intestacy in the district court and asserted, among other things, a claim under NMSA 1978, \u00a7 45-2-301 (1995), as an omitted spouse. The district court determined that Decedent devised his estate to his adult children of a prior marriage via the will and revocable trust, and that Mrs. Bell\u2019s claim under Section 45-2-301 must therefore fail. The district court certified the issue for interlocutory appeal. For the reasons set forth below, we reverse and remand with instructions.\nI. BACKGROUND\n{2} Decedent executed his will and created the Ralph Morris Bell Family Revocable Trust (Trust) on September 14, 2000. The will provides the following: \u201cAll of my estate of whatsoever kind ... I devise to the Trustee of the [Trust] to be held by said Trustee ... to be distributed as part of that Trust.\u201d In turn, the Trust provides that \u201c[u]pon the death of [Decedent], the ... Trustee shall distribute the entire [T]rust estate, principal and accumulated income[] to [Decedent\u2019s] children, RALPH MACK BELL and DIXIE ROBERTA HECKENDORN, in equal shares.\u201d The Trust further states that \u201c[i]n the event there are no living descendants entitled to distribution of the [T]rust assets, ... the Trustee shall distribute the [T]rust estate to the persons who would inherit New Mexico property from [Decedent] under the laws of the State of New Mexico in force on the date of [Decedent\u2019s] death if [Decedent] had died ... intestatef ] and unmarried.\u201d Neither the will nor the Trust refers to Mrs. Bell in any manner, nor do they indicate that Decedent was contemplating getting married.\n{3} In February 2001, approximately five months after executing the will and the Trust, Decedent married Mrs. Bell. Decedent died four years later on April 5, 2005. In addition to Mrs. Bell, Decedent was survived by two children from a prior marriage, Ralph Mack Bell (Son) and Dixie Roberta Heckendorn (collectively, Children).\n{4} On November 30, 2005, Mrs. Bell filed a petition for adjudication of intestacy, determination of heirship, and formal appointment as personal representative. Mrs. Bell asserted, among other things, that Decedent died intestate with respect to Mrs. Bell under Section 45-2-301. Son filed an objection to Mrs. Bell\u2019s petition, in which he claimed that Decedent devised all of his property to Children by will and thus died testate. Son asked the district court to appoint him as personal representative and to admit Decedent\u2019s will to probate. On April 25, 2006, the district court entered an order concluding that Decedent died testate and appointing Son as personal representative.\n{5} On October 19, 2006, Mrs. Bell filed a \u201cMotion for Summary Judgment or for Finding of Law\u201d regarding her theory that the Trust property should either be included in Decedent\u2019s estate for the purposes of calculating Mrs. Bell\u2019s intestate share under Section 45-2-301, or should be used for payment of her intestate share to the extent the probate estate proves to be inadequate. Mrs. Bell asserted that under Section 45-2-301, if the surviving spouse of a decedent married the decedent after he executed his will, the surviving spouse is entitled to receive, as an intestate share, no less than the value of the share of the estate she would have received if the decedent had died intestate. Mrs. Bell further claimed that no material facts were in dispute and that none of the exceptions to Section 45-2-301 applied.\n{6} Respondent-Appellee the Estate of Ralph M. Bell (Estate) filed a response in opposition to Mrs. Bell\u2019s motion and claimed that Section 45-2-301 only applies to that portion of the testator\u2019s estate that is not devised to the testator\u2019s child born before the testator married the surviving spouse and who is not a child of the surviving spouse. The Estate asserted that Decedent devised all of his property to Children via the Trust and that Decedent provided for Mrs. Bell by transfer outside of the will, thus triggering one of the exceptions listed in Section 45-2-301. More specifically, the Estate claimed that Decedent provided Mrs. Bell with $7,000.00 in life insurance proceeds, approximately $2,900.00 per month in retirement income, medicare coverage through Decedent\u2019s social security account, and long-term health care. Mrs. Bell filed a reply in which she asserted that these benefits did not constitute a transfer outside of the will under Section 45-2-301 and that Children are not devisees of Decedent\u2019s property, but instead are beneficiaries under the Trust.\n{7} Following a hearing on Mrs. Bell\u2019s motion for summary judgment, the district court found that the will and Trust taken together indicated Decedent\u2019s intent to devise his property to Children. The district court further concluded that Mrs. Bell was not entitled to a share of Decedent\u2019s estate as an omitted spouse, though she was entitled, under NMSA 1978, \u00a7 46A-5-505(A)(l) (2003), to invade the Trust corpus to satisfy the family and personal property allowances set forth in NMSA 1978, \u00a7 45-2-402 (1995), and NMSA 1978, \u00a7 45-2-403 (1999). The district court emphasized, however, that the sole basis for its denial of summary judgment was its finding that Decedent devised his estate to Children and therefore Section 45-2-301 did not apply. The district court did not rely on the exception to Section 45-2-301 regarding transfers in lieu of a testamentary devise. The district court delayed ruling on whether that exception precluded Mrs. Bell from receiving even the statutory allowances.\n{8} The district court\u2019s order denying Mrs. Bell\u2019s motion for summary judgment recited, in relevant part, the following:\n[Mrs.] Bell is the surviving spouse of [Decedent] and married ... Decedent after he executed his Will, which was admitted to probate in this matter. There was no provision made for [Mrs.] Bell in the Will or the Trust. However, the [c]ourt finds under [Section] 45-2-301 ... the Will and the ... Trust ... reflect that the property of ... Decedent was devised to children of [Decedent] who were born before [Decedent] married [Mrs.] Bell, and who are not children of [Mrs.] Bell; therefore, [Mrs.] Bell is not entitled to take any intestate share under [Section] 45-2-301 as an omitted spouse. As a result of the [e]ourt\u2019s ruling on the basis of the Will and the Trust ..., the [c]ourt finds it does not need to hear any evidence regarding the intent of [Decedent] for purposes of [Section] 45-2-301.\nThe district court further concluded that Mrs. Bell\u2019s right to invade the Trust corpus to satisfy the statutory allowances would be subject to the Estate\u2019s evidence regarding whether Decedent made a transfer to her outside of the will in lieu of making a testamentary provision for her. Finally, the district court certified for interlocutory appeal the question of whether Children are devisees for the purposes of Section 45-2-301. We granted Mrs. Bell\u2019s subsequent application for interlocutory appeal.\n{9} Mrs. Bell challenges the district court\u2019s denial of her share of Decedent\u2019s estate under Section 45-2-301 on the basis of the court\u2019s finding that Children were devisees, instead of beneficiaries. Mrs. Bell also addresses the questions of how an omitted spouse\u2019s intestate share should be calculated and satisfied. The Estate urges us to affirm on the basis that (1) Decedent\u2019s testamentary intent to devise his property to Children is clear from the will and the Trust and that (2) Decedent adequately provided for Mrs. Bell outside of the will, which satisfies the exception set forth in Section 45-2-301(A)(3). We note at the outset, however, that the district court expressly did not make its ruling on the basis of this subsection and did not certify that issue for interlocutory appeal. Accordingly, we do not reach that issue.\n{10} We consider and determine the issue regarding Children\u2019s status. For the purpose of guidance, we also address the application of Trust assets with respect to the omitted spouse\u2019s intestate share. Last, we review sua sponte an issue not raised in the briefs: the validity of the district court\u2019s determination that Mrs. Bell\u2019s right to statutory allowances is contingent upon whether Decedent made a transfer to her outside of the will. We begin with the question of whether Children were devisees within the meaning of Section 45-2-301.\nII. DISCUSSION\nA. Definition of \u201cDevisee\u201d Under Section 45-2-301\n{11} We review the district court\u2019s interpretation of Section 45-2-301 de novo. See Grine v. Peabody Natural Res., 2006-NMSC-031, \u00b6 17, 140 N.M. 30, 139 P.3d 190 (\u201cThis Court reviews the interpretation of a statute de novo.\u201d (internal quotation marks and citation omitted)). \u201cOur main goal in statutory construction is to give effect to the intent of the legislature.\u201d Id. (internal quotation marks and citation omitted). \u201cWe do not depart from the plain language of a statute unless we must resolve an ambiguity, correct a mistake or absurdity, or deal with a conflict between different statutory provisions.\u201d N.M. Bd. of Veterinary Med. v. Riegger, 2007-NMSC-044, \u00b6 11, 142 N.M. 248, 164 P.3d 947.\n{12} Section 45-2-301 provides, in relevant part, the following:\nA. If a testator\u2019s surviving spouse married the testator after the testator executed his will, the surviving spouse is entitled to receive, as an intestate share, no less than the value of the share of the estate he would have received if the testator had died intestate as to that portion of the testator\u2019s estate, if any, that neither is devised to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse nor is devised to a descendant of such a child or passes pursuant to Section 45-2-603 or 45-2-604 NMSA 1978 to such a child or to a descendant of such a child, unless:\n(1) it appears from the will or other evidence that the will was made in contemplation of the testator\u2019s marriage to the surviving spouse;\n(2) the will expresses the intention that it is to be effective notwithstanding any subsequent marriage; or\n(3) the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator\u2019s statements or is reasonably inferred from the amount of the transfer or other evidence.\n{13} In the present ease, the following is undisputed: (1) Mrs. Bell married Decedent after he executed his will, (2) the will contained no provision for Mrs. Bell, (3) the will does not reflect that it was made in contemplation of Decedent\u2019s marriage to Mrs. Bell, and (4) the will does not express the intention that it is to be effective notwithstanding Decedent\u2019s marriage to Mrs. Bell. Therefore, the only question that remains regarding the application of Section 45-2-301 in the present appeal is whether Decedent\u2019s devise of his property to the Trust constituted a devise to Children.\n{14} Black\u2019s Law Dictionary defines \u201cdevise\u201d as the following:\nn. 1. The act of giving property by will.... 2. The provision in a will containing such a gift. 3. Property disposed of in a will. 4. A will disposing of propei\u2019ty-\nvb. To give (property) by will.\nBlack\u2019s Law Dictionary 483-84 (8th ed.2004). Black\u2019s Law Dictionary defines \u201cdevisee\u201d as \u201c[a] recipient of property by will.\u201d Id. at 484. Similarly, our legislature specifically defined \u201cdevise\u201d in the New Mexico Uniform Probate Code as \u201ca testamentary disposition of real or personal property [or] to dispose of real or personal property by will.\u201d NMSA 1978, \u00a7 45-l-201(A)(9) (1995). The legislature defined a \u201cdevisee\u201d as \u201ca person designated in a will to receive a devise.\u201d Section 45-l-201(A)(10).\n{15} These definitions focus on the transfer of property through a will; nothing in the definitions suggests that the beneficiaries of a trust are also \u201cdevisees\u201d of the trust assets. To the contrary, Section 45-1-201(A)(10) states that \u201c[f]or the purposes of Chapter 45, Article 3 NMSA 1978 [regarding probate of wills and administration], in the case of a devise to an existing trust or trustee or to a trustee or trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.\u201d Id. (emphasis added). The definitions of \u201cdevise\u201d and \u201cdevisee\u201d set forth in Section 45-1-201 are for use throughout the Uniform Probate Code, which includes Section 45-2-301. See \u00a7 45-1-201(A).\n{16} In the present case, Decedent\u2019s will unambiguously devised his entire estate to the Trustee of the Trust, not to the Trust\u2019s beneficiaries. Therefore, under the plain language of Section 45-2-301, Decedent\u2019s estate was not \u201cdevised\u201d to Children.\n{17} The Estate argues that this is an overly technical reading of the statute that cuts against Decedent\u2019s intent \u2014 as reflected in the will and the Trust-to leave his assets to Children. This argument fails for two reasons. First, neither the will nor the Trust reflects Decedent\u2019s intent with respect to Mrs. Bell, as required by Section 45-2-301. It is clear from the statute that an omitted spouse is entitled to receive an intestate share, unless the testator expresses an intent to the contrary, either in the will itself or through a transfer outside of the will in lieu of a testamentary provision. See \u00a7 45-2-301(A). As mentioned previously, neither the will nor the Trust mentions Mrs. Bell, nor has the record been fully developed with respect to whether there has been a transfer outside of the will under Section 45-2-301(A)(3). By drafting Section 45-2-301 and the exceptions contained therein, the legislature obviously understood that a will executed prior to the testator\u2019s marriage might not reflect the testator\u2019s intent with regard to the omitted spouse. Therefore, the Estate\u2019s argument merely begs the question regarding Decedent\u2019s intent with respect to Mrs. Bell.\n{18} Second, and perhaps more important, the testator\u2019s intent does not control in all situations. We have previously noted that the legislature\u2019s intent in providing a surviving spouse with control over statutory allowances supersedes testator intent. See In re Estate of Jewell, 2001-NMCA-008, \u00b6\u00b6 12-14, 130 N.M. 93, 18 P.3d 334. Similarly, we have observed that \u201cin enacting the Probate Code, the legislature created, under certain circumstances, an intestate share for an omitted spouse.\u201d In re Estate of Coleman, 104 N.M. 192, 194, 718 P.2d 702, 704 (Ct.App.1986). As the South Carolina Court of Appeals has observed, \u201c[t]he omitted spouse statute attempts to accomplish two ends \u2014 carrying out the decedent\u2019s probable intent and protecting the still-surviving spouse.\u201d Green ex rel. Estate of Cottrell v. Cottrell ex rel. Estate of Cottrell, 346 S.C. 53, 550 S.E.2d 324, 329 (Ct.App.2001) (internal quotation marks and citation omitted). Our legislature has chosen to balance these interests by providing an omitted spouse with an intestate share, as long as the exceptions regarding the testator\u2019s intent are not met.\n{19} In sum, under ideal conditions, a testator who intends to marry will modify his or her pre-existing will to reflect his or her testamentary intent with regard to the new spouse. If, for whatever reason, the testator fails to do so, Section 45-2-301 provides several mechanisms for determining the testator\u2019s intent with regard to the omitted spouse. If those mechanisms fail to reveal that intent, our legislature has determined that the omitted spouse is entitled to an intestate share of the testator\u2019s estate.\n{20} We have already stated that the record before us in this case does not reflect that any of the exceptions in Section 45-2-301 have been met. On remand, the district court should hold an evidentiary hearing to determine whether Decedent made a transfer outside of the will with the intent that the transfer be in lieu of a testamentary provision under Section 45-2-301(A)(3). If that exception is not met, the legislative intent of protecting the omitted spouse must control, and Mrs. Bell is entitled to receive an intestate share of Decedent\u2019s estate. We now turn to the questions regarding the application of the Trust assets to the satisfaction of the intestate share \u2014 questions we address to provide guidance on remand if necessary.\nB. Trust Assets and Intestate Share\n{21} According to Mrs. Bell, the Estate has taken the position that the assets in the probate estate are insufficient to satisfy the family and personal property allowances. If this is the ease, it follows that although Mrs. Bell may be entitled to an intestate share, the probate estate may very well be insufficient to actually make any distribution. To address this potential problem, Mrs. Bell makes two arguments. First, she contends that the Trust assets should be included in the probate estate for purposes of calculating and satisfying her intestate share. In the alternative, Mrs. Bell asserts that because Section 46A-5-505(A)(3) instructs that a revocable trust may be invaded to satisfy the creditors of the decedent and to satisfy the family statutory allowances and because the Trust was a revocable trust, assets from the Trust should also be available to satisfy an omitted spouse\u2019s intestate share. We address these arguments in turn.\n1. The Probate Estate\n{22} Mrs. Bell points out that the New Mexico Uniform Probate Code defines the term \u201cestate\u201d to include generally \u201cthe property of the decedent, trust or other person whose affairs are subject to the Uniform Probate Code as originally constituted and as it exists from time to time during administration.\u201d Section 45-l-201(A)(12). Section 45-1-201(A) provides definitions for the entire Probate Code-to be applied, \u201cunless the context otherwise requires.\u201d While Mrs. Bell is correct that the term \u201cestate\u201d can include the property of a trust, her argument disregards the distinction between a trust estate and a probate estate.\n{23} The Restatement (Third) of Property: Wills and Other Donative Transfers \u00a7 1.1(a) (1999) defines \u201cprobate estate\u201d as \u201cthe estate subject to administration under applicable laws relating to decedents\u2019 estates.\u201d This section continues as follows: \u201cThe probate estate consists of property owned by the decedent at death and property acquired by the decedent\u2019s estate at or after the decedent\u2019s death.\u201d Id. Decedent funded the Trust before he died. After funding the Trust, Decedent no longer owned those assets because they became the property of the Trust and because the title to the assets was thus in the Trustee. See George Gleason Bogert & George Taylor Bogert, The Law of Trusts and Trustees \u00a7 1, at 4-5 (revised 2d ed.1984). Decedent\u2019s continued control over the assets as Trustee did not make these assets a part of the probate estate. See Restatement (Third) of Trusts \u00a7 25(1) (2003). Upon Decedent\u2019s death, the Trust directed that the property in the Trust was to be transferred to the beneficiaries; the Trust property never became a part of the probate estate. We conclude that the Trust assets are not a part of the probate estate and therefore cannot be used to calculate or satisfy the intestate share.\n2. Section 46A-5-505(A)(3)\n{24} Relying on the language in Section 46A-5-505(A)(3), Mrs. Bell likens her intestate share to a creditor\u2019s claim or a statutory allowance, both of which may be paid by a trust that was revocable at the settlor\u2019s death. In pertinent part, Section 46A-5-505(A)(3) states the following:\n[Ajfter the death of a settlor, and subject to the settlor\u2019s right to direct the source from which liabilities will be paid, the property of a trust that was revocable at the settlor\u2019s death is subject to claims of the settlor\u2019s creditors, costs of administration of the settlor\u2019s estate, the expenses of the settlor\u2019s funeral and disposal of remains and statutory allowances to a surviving spouse and children to the extent the settlor\u2019s probate estate is inadequate to satisfy those claims, costs, expenses and allowances.\n\u201cWhen construing statutes, our guiding principle is to determine and give effect to legislative intent.\u201d N.M. Indus. Energy Consumers v. N.M. Pub. Regulation Comm\u2019n, 2007-NMSC-053, \u00b6 20, 142 N.M. 533, 168 P.3d 105. We examine \u201cthe plain language of the statute, giving the words their ordinary meaning, unless the [legislature indicates a different one was intended.\u201d Id. Section 46A-5-505(A)(3) allows a revocable trust to be invaded in two relevant instances: to satisfy the claims of creditors and to provide the surviving family with the statutory allowances. We can see no legislative intent in the plain language of the statute that would allow an omitted spouse to invade a trust corpus to determine or satisfy an intestate share.\n{25} Section 45-2-402 and Section 45-2-403 entitle a decedent\u2019s surviving spouse to a family allowance of $30,000 and a personal property allowance of up to $15,000. A spouse is entitled to that minimum allowance regardless of the existence of a will. See id. Mrs. Bell suggests that because an omitted spouse is addressed by statute, Section 45-2-301, the omitted spouse statute operates as a statutory allowance. We are not persuaded. Section 45-2-301(A) clearly states that an omitted spouse is entitled to receive an intestate share, not an allowance. An intestate share for a surviving spouse is calculated according to NMSA 1978, \u00a7 45-2-102 (1975), which considers community and separate property, as well as any surviving issue of the decedent. In fact, Section 45-2-402 acknowledges that the family allowance is \u201cin addition to any share passing to the surviving spouse or minor or dependent children by intestate succession.\u201d Section 45-2-403 has similar language. We thus conclude that the intestate share of an omitted spouse is not a statutory allowance as contemplated by Section 46A-5-505(A)(3). See Jewell, 2001-NMCA-008, \u00b6 5, 130 N.M. 93, 18 P.3d 334 (identifying the statutory allowances as the family allowance and the personal property allowance found in Sections 45-2-402 and -403).\n{26} Mrs. Bell also relies on Sieh v. Sieh, 713 N.W.2d 194 (Iowa 2006). In Sieh, the decedent created and funded a revocable trust with his children as beneficiaries. Id. at 195. The decedent later remarried and did not alter his will or the trust. Id. After the decedent died, the widow attempted to include the trust assets in the calculation of her share of the estate. Id. at 196. The probate court would not allow the widow to invade the trust, but the Supreme Court of Iowa reversed the district court and allowed \u201cthe assets in the revocable trust to be included in the statutory share of [the decedent\u2019s spouse electing against the will.\u201d Id. at 198-99. The Supreme Court of Iowa noted that it was \u201cinfluenced by the fact that [it had] previously recognized the right of a general creditor to proceed against the assets in a revocable inter vivos trust for purposes of satisfying a valid claim filed in the estate of the settlor.\u201d Id. at 198.\n{27} We acknowledge first that Sieh involved Iowa\u2019s elective share statute, which allowed the surviving spouse to elect to receive a statutory percentage of the decedent\u2019s assets, rather than the share indicated by the will. Id. at 195-96. New Mexico does not operate under an elective share system but, instead, compensates a forgotten spouse under the omitted spouse statute and intestate succession. See \u00a7 45-2-301; see also W.S. McClanahan, Community Property Law in the United States \u00a7 11:5, at 513 (1982). In Sieh, the Court \u201crelied on the principle that a trust settlor should not be allowed to retain all the benefits of ownership without assuming any of the burdens.\u201d 713 N.W.2d at 198. We consider the claims of creditors and the statutory claims of a spouse or children to represent adequately the burdens of ownership, and those burdens may be satisfied with the assets of a revocable trust. See \u00a7 46A-5-505(A)(3). We agree that \u201cthe rights of a surviving spouse should not be less favored than the interests of general creditors.\u201d Sieh, 713 N.W.2d at 198. New Mexico\u2019s legislature, however, has implemented statutory protection for the surviving spouse in the form of the family and personal property allowances. We can determine no need to enlarge artificially the probate estate in order to protect further the rights of surviving omitted spouses. See \u00a7 45-2-402; Jewell, 2001-NMCA-008, \u00b6 9, 130 N.M. 93, 18 P.3d 334 (reviewing the protections offered by the statutory allowances).\n{28} Mrs. Bell also relies on Coleman, 104 N.M. at 194-95, 718 P.2d at 704-05, in support of her position. She argues that this Court, in Coleman, has already recognized that a surviving spouse can have access to trust assets under Section 45-2-301. We do not agree with Mrs. Bell\u2019s interpretation of our language in Coleman.\n{29} Coleman dealt with the proper distribution of the probate estate to an omitted spouse when the decedent intentionally excluded his son in the will. 104 N.M. at 192-93, 718 P.2d at 702-03. We concluded that although the decedent\u2019s son was not entitled to any part of the estate, he still would have been \u201centitled to share in his father\u2019s estate had his father died intestate\u201d and that the son would therefore still be considered \u201c \u2018issue\u2019 \u201d for purposes of calculating the intestate share. Id. at 194, 718 P.2d at 704. Consequently, we held that the omitted spouse was entitled to a one-fourth intestate share of the estate because the decedent was survived by issue, who was also due to receive an intestate share. Id. at 194-95, 718 P.2d at 704-05. With this as background, we turn to the language on which Mrs. Bell relies:\nThe purpose of [providing an omitted spouse with an intestate share] is to preserve the remainder of the will. Thus, if a widower executed a will creating a trust for his children and later remarried, the second wife would obtain the same share as if the husband had died intestate, but the trust would be preserved as to the remainder of his property.\nId. (internal quotation marks and citation omitted). Coleman instructs that once the intestate share of an omitted spouse is calculated and distributed, the trust would still be preserved and funded by the remainder of the decedent\u2019s probate estate. The trust referred to in Coleman, however, was a trust created by will-a testamentary trust. See Restatement (Third) of Trusts \u00a7 17(1) (2003) (\u201cA testamentary trust is one created by a valid will.\u201d). In the case before us, Decedent created an inter vivos trust in a separate document-a non-testamentary trust. See Restatement (Third) of Trusts \u00a7 17 cmt. a. The Trust was funded during Decedent\u2019s lifetime, and his will directed that the net assets of the probate estate were to pour over to the Trust upon Decedent\u2019s death. The language in Coleman does not concern a non-testamentary trust; however, to the extent that a will makes a non-testamentary trust a devisee, that trust, too, would be funded by the remainder of a decedent\u2019s probate estate, after the calculation of the omitted spouse\u2019s intestate share. The question Coleman does not address is whether the contents of a non-testamentary trust, funded before the death of the settlor, should be included in the probate estate for the calculation of the intestate share.\n{30} We disagree with the dissent\u2019s conclusion that our holding is based on policy. While we agree that Mrs. Bell would like this Court to reverse the district court\u2019s determination based on policy \u2014 and the dissent is in agreement \u2014 we are not at liberty to do so. Our holding is based on longstanding probate and estate law, as well as a plain reading of the pertinent statutes. It is up to the legislature to change the current law to allow the assets of a non-testamentary revocable trust to be available to satisfy the omitted spouse\u2019s share. This cannot be done by our Court.\n{31} We are also concerned that the dissent\u2019s approach creates a slippery slope. Section 45-2-301 contains competing policies. It protects the omitted spouse, but it also protects children born before the testator married the surviving spouse (pre-marriage children) by exempting from the calculation of an omitted spouse\u2019s intestate share that portion of the testator\u2019s estate devised to pre-marriage children. Section 45-2-301(A). We have already held that policy in Section 45-2-301 does not apply to Children in the present case because the will did not devise assets to Children as pre-marriage children, but rather to the Trust. As a result, we concluded that if the exception under Section 45-2-301(A)(3) is not met, Mrs. Bell is entitled to receive an intestate share of Decedent\u2019s estate. Paragraph 20 of this opinion.\n{32} By the terms of the Trust, Decedent directed that the assets in the Trust at the time of death be transferred to Children. There is no language in Section 45-2-301 or Section 45-2-102 regarding the use of trust assets to satisfy the omitted spouse\u2019s intestate share. Nor is there language regarding what to do with trust assets that are to be transferred to pre-marriage children. A policy that allows the omitted spouse\u2019s intestate share to be satisfied from a non-testamentary revocable trust without consideration of the effect of the policy on pre-marriage children arbitrarily selects one of the competing policies found in Section 45-2-301 without any legislative guidance. By relying on New Mexico law and by limiting our review to the plain language of the statutes, we eliminate the creation of new policy questions that must be answered in a vacuum.\n{33} Accordingly, we conclude that (1) a funded revocable trust is not a part of the probate estate and (2) an omitted spouse may not access the assets of a non-testamentary revocable trust in order to satisfy his or her intestate share. We therefore hold that Mrs. Bell may not invade the corpus of the Trust in order to calculate or satisfy her intestate share under Section 45-2-301.\nC. Statutory Allowances Under Sections 45-2-402 and -403\n{34} The district court concluded in its order that Mrs. Bell\u2019s right to use the Trust assets to satisfy her statutory allowances would be subject to evidence regarding whether Decedent had transferred any property to her in lieu of the allowances. Although the parties did not raise the issue in their briefs, we address it sua sponte because the district court erred as a matter of law in this regard.\n{35} The family and personal property allowances are set forth in Sections 45-2^402 and -403, respectively. Neither statute provides an exception to the allowances based on a transfer in lieu of allowance. To the contrary, both statutes explicitly state that the allowance is \u201cin addition to any [benefit or] share passing to the surviving spouse ... by intestate succession or by the decedent\u2019s will, unless otherwise provided by the decedent in the mil or other governing instrument.\u201d Sections 45-2-402, -403 (emphasis added). As mentioned previously, it is undisputed that neither the will nor the Trust makes a provision for Mrs. Bell or mentions her in any regard. Moreover, we have previously stated that \u201cthe legislature has ensured that the surviving spouse, not the testator, has control over the statutory allowances.\u201d Jewell, 2001-NMCA-008, \u00b6 14, 130 N.M. 93, 18 P.3d 334. We therefore hold that transfers outside of a will cannot offset or preclude the statutory allowances set forth in Sections 45-2-402 and -403.\nIII. CONCLUSION\n{36} We reverse the district court\u2019s order and remand for further proceedings consistent with this opinion.\n{37} IT IS SO ORDERED.\nI CONCUR: JONATHAN B. SUTIN, Chief Judge.", "type": "majority", "author": "CASTILLO, Judge." }, { "text": "MICHAEL D. BUSTAMANTE, Judge\n(concurring in part and dissenting in part).\n{38} I concur in all of the majority opinion except Section B. In Section B the majority refuses to allow the Trust to be used to help satisfy Mrs. Bell\u2019s claims under the omitted spouse statute on the theory that it should not be deemed a \u201cstatutory allowance\u201d under Section 46A-5-505(A)(3). The majority asserts that using Trust assets to satisfy the obligation created by the omitted spouse statute would \u201cartificially\u201d enlarge the probate estate; the majority refuses to do so as a matter of policy.\n{39} I do not share the majority\u2019s concern or view. If the legislature intended omitted spouses to be limited to the specific monetary allowance provided in Section 45-2-402, there would be no need to address separately the issue of omitted spouses. The effect of the majority\u2019s position is to artificially limit a benefit created by the legislature. The perverse effect of this limit is most evident when the deceased places most or all of a large estate in a revocable inter vivos trust. The monetary allowance of Section 45-2-402 may be dwarfed by the size of the total estate. I see no rhyme or reason behind the majority\u2019s decision to potentially punish omitted spouses in such a situation. There is no reason evident from the provisions or structure of the Probate Code, which requires that the omitted spouse statute be given less protection than the statutory allowance. There is no rhyme to treating omitted spouses less favorably than general creditors of the estate. To do so seems to me bad policy and contrary to the legislative intent behind the omitted spouse statute.\n{40} The purpose of an omitted spouse statute is to guard against unintentional disinheritance. See In re Estate of Moi, 136 Wash.App. 823, 151 P.3d 995, 997 (2006) (\u201cAn omitted spouse statute\u2019s purpose is to prevent the unintentional disinheritance of the surviving spouse of a testator who marries after making a will and then dies without ever changing it.\u201d (internal quotation marks and citation omitted)). Section 45-2-301(A) provides an omitted spouse with an intestate share of the testator\u2019s estate, unless any of three exceptions are met. See \u00a7 45-2-301(A)(l)-(3). By enumerating these exceptions, the legislature has set forth specific situations from which the testator\u2019s intent with regard to the omitted spouse can be inferred so as to overcome the general purpose of the statute. When none of the exceptions applies, the general purpose of the statute remains in effect.\n{41} Nevertheless, the majority concludes that assets held in a revocable inter vivos trust are insulated from this general purpose. There is nothing sacrosanct about a revocable inter vivos trust. If a trust can be invaded for the purpose of satisfying statutory allowances and debts owed to creditors of the estate, there is no reason why it cannot also be used to satisfy an omitted spouse\u2019s intestate share under Section 45-2-301.", "type": "concurring-in-part-and-dissenting-in-part", "author": "MICHAEL D. BUSTAMANTE, Judge" } ], "attorneys": [ "Sanders, Bruin, Coll & Worley, P.A., Ian D. McKelvy Roswell, NM, for Appellant.", "Tim J. O\u2019Quinn, P.C., Tim J. O\u2019Quinn, Tucumcari, NM, for Appellee." ], "corrections": "", "head_matter": "2008-NMCA-045\n181 P.3d 708\nVivan BELL, Petitioner-Appellant, v. The ESTATE OF Ralph M. BELL, Respondent-Appellee.\nNo. 27,392.\nCourt of Appeals of New Mexico.\nFeb. 21, 2008.\nCertiorari Granted, April 1, 2008, No. 30,997.\nSanders, Bruin, Coll & Worley, P.A., Ian D. McKelvy Roswell, NM, for Appellant.\nTim J. O\u2019Quinn, P.C., Tim J. O\u2019Quinn, Tucumcari, NM, for Appellee." }, "file_name": "0716-01", "first_page_order": 752, "last_page_order": 761 }