Spouse Drops Pass from Dead Husband

By Doug Chalgian on February 6, 2022

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Seems pretty simple.  John died.  His spouse, Ruth, survived him.

John’s Trust says Ruth can withdraw all or some of the assets in the trust following his death provided she prepares a written document exercising that right and files it with the probate court at least a month before his federal estate tax return is due.

Ruth did that, everything except the part about filing it with the probate court. Her lawyers told her not to bother with that detail.

And since Ruth was Trustee too, after giving herself the written notice, she took the property.

Then Ruth died.

John’s kids, who would have taken the trust property had Ruth not exercised her right of withdrawal, sue to recover the property on the theory that the right of withdrawal was not properly exercised and therefore void.  The trial judge refused to order the property that Ruth took be returned.  John’s kids appealed.

On appeal, the trial court is reversed.  In an unpublished decision, the Michigan Court of Appeals says the trust is unambiguous, and Ruth failed to do what was required.

Incomplete pass.

The provision at issue said:

(e) Spouse’s Right. My Spouse shall have the right to receive free from trust all or any portion of the property which otherwise would have been held by Trustee under this Agreement after my death, but only by filing, with the court which has (or would have had if my estate were probated) domiciliary jurisdiction of my estate, a writing evidencing of that right. The writing shall make specific reference to this provision of this Agreement, be signed by my Spouse personally, and shall be filed with the court after my death and not later than 5:00 pm, current local time, one month prior to the initial due date for filing the federal estate tax return in my estate. Failure of my Spouse to file the writing shall constitute an irrevocable disclaimer of any rights under this paragraph.

To read In Re John Adams Trust, click here

Wouldn’t want to be the lawyer who told her not to file the papers with the court.


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mm By: Doug Chalgian
Doug Chalgian

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