Estate of Leve v. Leve

704 S.W.2d 261
CourtMissouri Court of Appeals
DecidedJanuary 28, 1986
DocketNo. 49859
StatusPublished

This text of 704 S.W.2d 261 (Estate of Leve v. Leve) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Leve v. Leve, 704 S.W.2d 261 (Mo. Ct. App. 1986).

Opinion

DONALD L. MANFORD, Special Judge.

This is a proceeding in probate wherein the surviving spouse elected to take against the will of decedent. The circuit court, probate division, entered judgment in the form of its order determining the method for the calculation of the share of the surviving spouse. This appeal followed. The judgment is reversed and the cause remanded.

Appellant presents a sole point, which in summary charges that the trial court erred in its interpretation of § 474.163.3, RSMo 1978, thus requiring that domestic services provided by decedent be considered as a fifty percent contribution of moneys’ worth toward the acquisition, establishment, or creation of jointly held property.

This case, having been tried to the court, places the review of same within Rule 73.-01 and the interpretation of that rule provided by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

Upon trial, the only evidence introduced was by appellant, Harry Leve, the surviving spouse of decedent, Thelma Leve. This evidence is summarized as follows:

Harry Leve (appellant) was the husband of Thelma B. Leve (decedent) from November 29, 1945 until decedent’s death on January 27, 1983. During the marriage, appellant was gainfully employed outside the home until his retirement sometime around 1970. Thereafter, appellant drew social security. The income and earnings so derived were placed in accounts and investments jointly held by appellant and decedent. The moneys from said accounts and investments were used to support appellant and decedent. Decedent was never employed outside the home. Upon the death of her mother in 1968, decedent received an interest in' some real estate and some money. Decedent kept this money, and moneys received as rent from the real estate, in a separate account in her name alone. Decedent also received social security which she deposited in her and appellant’s joint account. In 1948, appellant and decedent purchased a home for $10,250.00, which [265]*265was titled in appellant and decedent by the entireties. The monthly payments for the house were made from the joint account. The house was paid off in 1959.

Decedent died, leaving no children or parents but was survived by a brother Elmer Bernhardt as well as by appellant. Upon her death, decedent willed her entire estate, minus the expenses as paid above, to her personal representative in trust for the benefit of her brother, Elmer Bernhardt, for as long as he lives and upon his death, the balance of said trust to be divided and distributed to her brother’s wife and named charitable institutions. On March 28, 1983, appellant timely filed his election to take against the will. Since decedent’s death, appellant has sold their home for $34,-558.00. Appellant testified that he actually received $30,349.86 for the home.

While the value of decedent’s estate, the statutory exemptions, and the claimed joint property values are provided to this court, in light of the disposition of this appeal, those figures bear no real significance and are thus excluded herein.

This case poses an interesting and difficult question in that it requires an interpretation of § 474.163.3, which was enacted in 1980 and for which there are no prior cases of interpretation.

Pursuant to § 474.160, RSMo 1978 and 474.163, RSMo Supp.1984, since decedent left no lineal descendants, on electing to take against her will, appellant became entitled to receive one-half of decedent’s estate offset by his homestead allowance of $7,500.00 and subject to claims.

Section 474.163 prescribes the method for determining the value of the estate for purposes of taking against the will and states in part:

1.For the purposes of section 474.160, the estate consists of all money and property owned by the decedent at his death, reduced by funeral and administration expenses, exempt property, family allowance and enforceable claims, and increased by the aggregate value of all money and property derived by the surviving spouse from the decedent by any means other than testate or intestate succession, exempt property or family allowance without a full consideration in money or money’s worth. The aggregate value of money and property so derived by the surviving spouse from the decedent shall be offset against the elective share given by section 474.160.
2. Property derived from the decedent includes, but is not limited to:
(1) Any beneficial interest of the surviving spouse in a trust created by the decedent during his lifetime;
(2) Any property appointed to the spouse by the decedent’s exercise of a general or special power of appointment also exercisable in favor of persons other than the spouse;
(3) Any proceeds of insurance, including accidental death benefits, on the life of the decedent attributable to premiums paid by him;
(4) Any lump sum immediately payable, and the commuted value of the proceeds of annuity contracts under which the decedent was the primary annuitant, attributable to premiums paid by him;
(5) The commuted value of amounts payable after the decedent’s death under any public or private pension, disability compensation, death benefit or retirement plan, exclusive of the Federal Social Security system, by reason of service performed or disabilities incurred by the decedent; and
(6) The value of the share of the surviving spouse resulting from rights in community property in any other state formerly owned with the decedent.
Premiums paid by the decedent’s employer, his partner, a partnership of which he was a member, or his creditors, are deemed to have been paid by the decedent.
3. When immediately before the decedent’s death the surviving spouse was a cotenant or remainderman with respect to money, property, a trust fund or an account in a bank of other financial institution and, incident to such death, the [266]*266surviving spouse became the sole owner thereof or the owner of a life interest therein, the whole value of such sole ownership or life interest shall be deemed to have been received from the decedent, except as to the proportion of such value, if any, derived from contributions toward the acquisition, establishment or creation or1 the money, property, fund or account made by the surviving spouse or ascendant or collateral blood relatives of the surviving spouse, other than the decedent.
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The record shows that appellant received no property pursuant to sub-section 2.

The issue herein is whether jointly held property, which succeeded to appellant upon decedent’s death, in light of appellant’s election to take against the will, is to be deemed, in whole or in part, as having been derived from decedent within the meaning of § 474.163.3, so as to be included, in whole or in part, within the decedent’s estate.

Appellant contends that none of the jointly held property should be included in the estate because decedent contributed nothing to the acquisition, establishment or creation of the money, property, fund or account and all monies held jointly, and all monies used to acquire joint property, were derived from appellant’s earnings and income.

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Related

Estate of Kersten v. Kersten
239 N.W.2d 86 (Wisconsin Supreme Court, 1976)
Murphy v. Carron
536 S.W.2d 30 (Supreme Court of Missouri, 1976)
In Re Tompkins'estate
341 S.W.2d 866 (Supreme Court of Missouri, 1960)
Estate of Otte v. Commissioner
1972 T.C. Memo. 76 (U.S. Tax Court, 1972)

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Bluebook (online)
704 S.W.2d 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-leve-v-leve-moctapp-1986.