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OMITTED SPOUSE - § 43-8-90, ALA. CODE 1975 - INTESTATE SHARE - JOINT BANK ACCOUNTS - IVEY V. IVEY

Ivey v. Ivey, [Ms. 1160280, Sept. 8, 2017] __ So. 3d __ (Ala. 2017). In this decision by Justice Bryan, (Stuart, C.J., and Bolin and Main, JJ., concur; Murdock, J., concurs in the result), the Court reverses the circuit court’s order denying a widow’s claim for an intestate share of her deceased husband’s estate pursuant to the omitted-spouse statute – § 43-8-90.

Section 43-8-90 of the probate court code provides that with respect to a spouse who the testator married after execution of the testator’s will, the omitted spouse is to receive the same share of the estate that he or she would have received if the decedent had left no will. The statute provides for two exceptions where the omitted spouse does not receive an intestate share – namely “that the omission was intentional or [that] the testator provided for the spouse by transfer outside of the will ....” The trial court found that the testator made provisions for the widow by improving her home and through a number of joint bank accounts as to which the widow enjoyed rights of survivorship. The Court reversed the circuit court holding that “the mere fact that a testator and his or her surviving spouse are joint tenants on a bank account is insufficient in and of itself to avoid application of the omitted-spouse statute.” Ms. *34. The Court found that “in this case, there was no indication that would support the conclusion that [the testator] intended for the funds in his and [the widow’s] joint accounts to be in lieu of a testamentary provision ....” Ms. *35. The Court also concluded that the contributions the deceased made to improving the widow’s home, owned by the widow before the marriage, was minimal and therefore insufficient to prove an exception to the omitted-spouse statute. Ms. *24-25.

Finally, the Court noted that

The facts of this case present us with a question not at issue in Ferguson: In an omitted-spouse case, where there is no evidence indicating that either exception in § 43-8-90 applies, but there is nevertheless evidence indicating that the testator intentionally disinherited the omitted spouse, does § 43-8-90 operate to preclude the omitted-spouse claim? The plain and unambiguous language of § 43-8-90 requires us to answer that question in the negative.

Ms. *36.

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