Brief Fact Summary. Decedent’s second wife sought her elective share and family allowance of the decedent’s estate. The decedent had previously executed a contract or joint will with his first wife devising the his entire estate to other individuals. The legatees of the joint will sought to prevent the second wife from taking her elective share and family allowance.
Synopsis of Rule of Law. Based on the public policy of the marriage relationship, the rights of legatees under a contract or joint will are limited by the possibility that the surviving spouse might remarry and the new spouse might elect against the will.
Lester Shimp was married to his first wife in 1941. The couple later executed an instrument titled “Last Will and Testament of Clara V. Shimp and Lester Shimp.” The estate was to pass to the surviving spouse and then after their death to three individuals. Clara died in 1975 and Lester did not offer the will for probate, rather he filed a petition requesting the right to execute a new last will and testament. The court found that the will was revocable but that the contract under which the will was executed might be specifically enforced in equity or at law. In 1985 Lester married Lisa Mae and they remained married until his death. Following Lester’s death the joint will was admitted to probate and Lester’s second wife sought to have the personal representative pay her family allowance and elective share of Lester’s estate. The personal representative refused and Lisa Mae filed for declaratory relief.
Issue. Whether the decedent’s second wife it entitled to receive an elective share and a family allowance under the state law when the decedent had previously contracted, by virtue of a joint will with his first wife, to will his entire estate to others?
Held. Yes. The decedent’s second wife is entitled to receive an elective share and family allowance as it takes precedence over the claims of the legatees.
Discussion. Points of Law - for Law School Success
That right may only be taken away or modified by her voluntary consent, by her own act or by statute. View Full Point of Law
The Court found that the question of priorities between a surviving spouse and beneficiaries under a contract or joint will should be resolved based on the public policy surrounding the marriage relationship. The legatees claims under the contract or joint will are subordinate to the widow’s right to receive her elective sha.