Grasseschi v. Smiley

776 P.2d 1136, 13 Brief Times Rptr. 525, 1989 Colo. App. LEXIS 120, 1989 WL 46798
CourtColorado Court of Appeals
DecidedMay 4, 1989
DocketNo. 87CA1058
StatusPublished

This text of 776 P.2d 1136 (Grasseschi v. Smiley) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grasseschi v. Smiley, 776 P.2d 1136, 13 Brief Times Rptr. 525, 1989 Colo. App. LEXIS 120, 1989 WL 46798 (Colo. Ct. App. 1989).

Opinion

FISCHBACH, Judge.

Robert R. Smiley — personal representative of the estate of decedent, Mary Lou Grasseschi, and trustee of an inter vivos trust decedent established (trustee) — appeals a probate order concerning an action taken by Thomas A. Grasseschi (Grasses-chi), the decedent’s surviving spouse. In that order, the court ruled that Grasseschi had effectively renounced his interest in the trust and, thus, was entitled to have all of the trust assets included in the augmented estate for purposes of calculating his elective share without a deduction for his otherwise beneficial interest in the trust. We affirm.

Three months before her death, the decedent created a revocable inter vivos trust into which she transferred most of her property. At the same time she executed a will which specified that her residuary estate would pour over into the trust. The trust provided that the monthly net income from trust assets would be paid to Grasses-chi and that the principal remaining upon his death would pass to a trust for the decedent’s children.

Decedent died on July 25, 1984, and her will was lodged with the district court on November 28,1984. On February 13,1986, her will was admitted to formal probate. On June 4, 1985, and again on April 8, 1986, Grasseschi filed a petition to take an elective share of his wife’s estate.

The dispute between the trustee and Grasseschi concerns the determination of Grasseschi’s elective share of decedent’s “augmented estate,” pursuant to § 15-11-207, C.R.S. (1987 Repl.Yol. 6B). Section 15-11-207(1), C.R.S. (1981 Repl.Yol. 6B) provides that in computing the augmented estate, “property otherwise passing [1138]*1138to the surviving spouse” does not include a beneficial interest in a trust created by the decedent “unless the surviving spouse chooses to accept and not renounce such beneficial interest.” To the extent that the surviving spouse has “property otherwise passing” to him from the decedent, his election to take a portion of the augmented estate will reap him a smaller benefit. See § 15-11-207(2) & (3), C.R.S. (1987 Repl.Vol. 6B); In re Estate of Smith, 718 P.2d 1069 (Colo.App.1986).

Here, Grasseschi argued to the trial court that, pursuant to this section, he had chosen not to accept, but rather to renounce, his beneficial interest in the trust. The trial court found that a surviving spouse may renounce his interest under the inter vivos trust “in any reasonable manner and within a reasonable time,” and, after an evidentiary hearing, ruled that Grasses-chi had effectively renounced his interest in the trust for the purpose of calculating his elective share of the augmented estate.

The trustee contends that the trial court erred in so ruling. He argues that because § 15-11-207 provides no specific procedure for renouncing a trust, the procedures detailed in § 15-11-801, C.R.S. (1987 Repl. Vol. 6B) and/or § 15-1-901, C.R.S. (1987 Repl.Vol. 6B) must be followed. Because Grasseschi admittedly did not follow either of these procedures, the trustee concludes, he did not effectively renounce the trust. We disagree.

I.

The trustee first contends that the trial court erred in ruling that Grasseschi was not required to follow the procedures set forth in § 15-11-801 to renounce his interest in the trust. We, however, agree with the trial court that because the trust in question was an inter vivos transfer, this section, which concerns the renunciation of only testamentary or intestate transfers, does not apply. See § 15-11-801(1), C.R.S. (1987 Repl.Vol. 6B); 1 R. Wellman, Uniform Probate Code Practice Manual 72 (2d ed. 1977). While the provision in the will that any residuary assets in decedent’s estate pour over into the trust creates a testamentary transfer to the extent of the pour-over, the instant dispute concerns the corpus of the trust, not the minimal pour-over. Thus, we need not decide whether § 15-11-801 would be the exclusive means of renouncing the pour-over.

II.

The trustee next asserts that if the trust is classified as an inter vivos transfer and § 15-11-801 does not apply, the trial court erred in ruling that Grasseschi was not required to follow the procedures outlined in § 15-1-901 for renouncing nontes-tamentary transfers. Grasseschi, on the other hand, maintains that the ruling was correct because § 15-1-901 does not provide the exclusive means of renouncing nontestamentary transfers, and, because its means conflict with both the wording and purpose of § 15-11-207, the latter statute must control. We agree with Grasses-chi and the trial court.

In relevant part, § 15-1-901 provides as follows: “(1) A person ... who is a grantee, donee, ... beneficiary under a nontesta-mentary instrument or contract ... may disclaim in whole or in part the right of succession or transfer to him of any property, real or personal, or interest therein by delivering or filing a written disclaimer within the time and at the place as provided in section 15-1-902.” Section 15-1-902, C.R.S. (1987 Repl.Vol. 6B), in turn, requires that any disclaimer pursuant to the statute be made within nine months after certain events. With respect to a future interest, the disclaimer must be within nine months of the event causing the beneficiary’s interest to become indefeasibly fixed in both quality and quantity, in this case, the decedent’s death.

The statute sets forth a procedure for renouncing interests in nontestamentary instruments generally. It is a residuary statute and does not abridge the specific right to renounce an interest under any other statute. Section 15-1-905, C.R.S. (1987 Repl.Vol. 6B). Because the statute is general and procedural, it must yield to conflicting special legislation. See Air Pollution Control Commission v. District [1139]*1139Court, 193 Colo. 146, 563 P.2d 351 (1977); Weather Engineering & Manufacturing, Inc. v. Pinon Springs Condominiums, Inc., 192 Colo. 495, 563 P.2d 346 (1977). Section 15-11-207 concerns the special circumstance of determining the augmented estate, so its provisions regarding renunciation prevail in any conflict with § 15-1-901.

Section 15-11-207(1), C.R.S. (1987 Repl. Vol. 6B) provides as follows:

“For thé purposes of this section, ‘property otherwise passing to the surviving spouse’ means property which is part of the augmented estate which passes or has passed to the surviving spouse by testate or intestate succession or other means, including property described in section 15-ll-202(l)(b) but excluding any beneficial interest of the surviving spouse in a trust created by the decedent, unless the surviving spouse chooses to accept and not renounce such beneficial interest....”

When interpreting a statute, we are required to ascertain the legislative intent and to give effect to every word and phrase of the enactment. Arellano v. Director, Division of Labor, 42 Colo. App. 149, 590 P.2d 987 (1979). As correctly argued by the trustee, the section does not elaborate on the means of renunciation.

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Related

Arellano v. DIRECTOR, DIV. OF LABOR
590 P.2d 987 (Colorado Court of Appeals, 1979)
Matter of Estate of Smith
718 P.2d 1069 (Colorado Court of Appeals, 1986)
Air Pollution Control Commission v. DISTRICT COURT, ETC.
563 P.2d 351 (Supreme Court of Colorado, 1977)

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Bluebook (online)
776 P.2d 1136, 13 Brief Times Rptr. 525, 1989 Colo. App. LEXIS 120, 1989 WL 46798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grasseschi-v-smiley-coloctapp-1989.