Marinakis v. Marinakis

2025 Ohio 2555

Opinion

[Cite as Marinakis v. Marinakis, 2025-Ohio-2555.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

EVONNE SKOUTELAS MARINAKAS, : et al., CASE NO. CA2024-05-070 : Appellees and Cross-Appellants, OPINION AND : JUDGMENT ENTRY 7/21/2024 - vs - :

: GEORGE D. MARINAKAS, et al., : Appellants and Cross-Appellees.

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Case No. PC22-05-0018

Flagel & Papakirk and James Papakirk; and Robbins, Kelly, Patterson & Tucker, and William D. Sherman and Zachary C. Schaengold, for appellees and cross-appellants.

Schroeder, Maundrell, Barbiere & Powers, and Thomas T. Keating and Kurt M. Irey, for appellants and cross-appellees.

____________ OPINION

BYRNE, P.J.

{¶ 1} This case involves a dispute between a deceased man's widow and

children, on the one hand, and his siblings, on the other hand, over whether the children Butler CA2024-05-070

should inherit a portion of the deceased man's estate. Defendants-Appellants/Cross-

Appellees, George D. Marinakis, Ted D. Marinakis, and Angela D. Marinakis (collectively,

"the siblings"), appeal from the decision of the Butler County Court of Common Pleas,

Probate Division, granting summary judgment in favor of Plaintiffs-Appellees/Cross-

Appellants, Evonne Skoutelas Marinakis and the three minor "pretermitted" children she

shared with her deceased husband. For the reasons outlined below, we reverse the trial

court's decision and remand for further proceedings.

I. "Pretermitted" Children or Heirs

{¶ 2} This case concerns the legal status of certain "pretermitted" children. This

term will be unfamiliar to most readers. In fact, this appears to be the first case in which

our court has ever mentioned the term "pretermitted" and the first case in which our court

has ever cited R.C. 2107.34(A), the statute concerning pretermitted children that is at the

center of the dispute in this case. We therefore pause at the outset to explain what a

"pretermitted" child or heir is, and to provide the reader with the statute's text.

{¶ 3} "Pretermitted" means "to 'pass by,' 'to omit,' 'to disregard.'" York v. York, 60

N.E.2d 70, 73 (2d Dist. 1944), quoting Porter v. Porter's Ex'r, 120 Ky. 302 (1905). The

pretermitted-child statute, R.C. 2107.34(A), states that a "pretermitted child or heir" exists

"if, after making a will, a testator has a child born alive, adopts a child, or designates an

heir . . ., or if a child or designated heir who is absent and reported to be dead proves to

be alive." (Emphasis added.) See also Maharg v. Maharg, 1998 Ohio App. LEXIS 4012,

*1 (5th Dist. Aug. 3, 1998).

{¶ 4} With certain qualifications, R.C. 2107.34(A) permits pretermitted children to

inherit the portion of their deceased parent's estate that they would have inherited if their

parent had died intestate—that is, without a will—through a procedure of proportional

"abatement" of the "devises and legacies granted by the will." The statute states in full:

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Subject to division (C) of this section,1 if, after making a will, a testator has a child born alive, adopts a child, or designates an heir in the manner provided by section 2105.15 of the Revised Code, or if a child or designated heir who is absent and reported to be dead proves to be alive, and no provision has been made in the will or by settlement for the pretermitted child or heir, or for that child's or heir's issue, the will shall not be revoked. Unless it appears by the will that it was the intention of the testator to disinherit the pretermitted child or heir, the devises and legacies granted by the will, except those to a surviving spouse, shall be abated proportionately, or in any other manner that is necessary to give effect to the intention of the testator as shown by the will, so that the pretermitted child or heir will receive a share equal to that which the person would have been entitled to receive out of the estate if the testator had died intestate with no surviving spouse, owning only that portion of the testator's estate not devised or bequeathed to or for the use and benefit of a surviving spouse. If the pretermitted child or heir dies prior to the death of the testator, the issue of the deceased child or heir shall receive the share the parent would have received if living.

R.C. 2107.34(A). We will return to the text of the statute in our analysis below, after

addressing the facts and procedural history of this case.

II. Factual and Procedural Background

{¶ 5} This case arises from the untimely death of Bill D. Marinakis on September

9, 2021, due to complications from COVID-19. The dispute centers on the distribution of

Bill's substantial estate and whether his children qualify as pretermitted heirs under Ohio

law.

{¶ 6} In early 2009, Bill consulted attorney Jetta Mencer about preparing his will.

Mencer testified in her deposition that during their three or four meetings, Bill discussed

his upcoming marriage to Evonne and expressed some unspecified "trepidation" about

the relationship. Mencer said that she advised Bill about a spouse's statutory right to elect

against a will and explained how he might use non-testamentary transfers, such as

1. Subsection (C) is not relevant to the issues in this appeal. -3- Butler CA2024-05-070

transfer-on-death accounts and beneficiary designations, to exercise greater control over

his assets. According to Mencer, while Bill considered the implications of marriage on his

estate plan, he did not discuss potential future children during these consultations.

{¶ 7} On May 2, 2009, approximately six weeks before his marriage, Bill executed

a will leaving his entire estate to his three siblings—George, Ted, and Angela—except for

nominal bequests to his church and dental school. Bill named Angela, a long-time

attorney, as the executor of his estate. The will made no mention of Bill's future wife or

potential children.

{¶ 8} Bill married Evonne the next month, in June 2009. Following their marriage,

the couple had three children together. The children were born in 2010, 2013, and 2020.

Despite these significant life changes, Bill never amended his will.

{¶ 9} Angela, Bill's sister, testified in her deposition about Bill's approach to

financial matters over the years. According to Angela, Bill was meticulous about estate

planning, regularly discussing financial matters with her and encouraging their other

siblings to maintain current wills. She described Bill as taking deliberate steps to manage

and protect his assets, including having financial statements sent to their mother's house,

ostensibly to keep them from Evonne's view. Angela recalled conversations with Bill about

appropriate inheritance amounts, during which they both expressed their belief that

children should not receive so much inheritance that they do not need to work, and that it

was important for children to work and have goals. In one conversation approximately

seven to eight years before his death, Bill suggested to Angela that his children would be

"set for life" and mentioned possibly giving some money to Angela and his brothers.

{¶ 10} But text messages between Bill and Angela during Bill's final illness paint a

somewhat different picture. These communications suggest some uncertainty on Bill's

part about how his assets would be divided, with Bill appearing to agree with Angela's

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message to him that she would "make sure your kids get everything"—a sentiment that

seems to conflict with his unchanged will leaving everything to his siblings.

{¶ 11} Angela knew that Bill had substantial assets, but she did not know exactly

how much. When he died, it was discovered that Bill owned assets totaling around $10

million. His probate estate, which included bank accounts, stocks, investment accounts,

and business interests, was valued at approximately $5.3 million. Bill's non-testamentary

assets, which were in the form of life insurance and various investment accounts, were

valued at about $4.5 million. Angela was the beneficiary of the life insurance, and his

Siblings were the beneficiaries of some investment accounts. But the bulk of the non-

testamentary accounts, around $3.5 million, was designated for Bill's children through

various beneficiary arrangements. Bill had also established and funded investment

accounts in each child's name; those accounts totaled over $750,000.

{¶ 12} Following Bill's death, Evonne filed an election to take her spousal share

against his will under R.C. 2106.01(A), in the amount of one-third of the net estate.

Evonne then initiated this action on behalf of the children seeking a declaratory judgment

that the children were pretermitted heirs entitled, under R.C. 2107.34, to receive what

they would have received had Bill died without a will under R.C. 2105.06(A). This would

have amounted to the rest of Bill's estate. Evonne also sought an order placing the

estate's assets to which the children were entitled as pretermitted heirs in a constructive

trust until the matter was resolved. The siblings counterclaimed, arguing that the

substantial non-testamentary assets that Bill left to the children constituted a provision by

"settlement," which would mean that R.C. 2107.34 did not apply and the children were

not eligible to take against the estate.

{¶ 13} The siblings moved for summary judgment on all the claims and issues, and

Evonne and the children moved for partial summary judgment on the siblings'

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counterclaim and Evonne's and the children's claim for declaratory judgment. On April 30,

2024, the trial court granted Evonne and the children's motion for partial summary

judgment and denied the siblings' motion for summary judgment, finding that the children

were pretermitted heirs entitled under R.C. 2107.34 to inherit from Bill's estate.

{¶ 14} The probate court began its analysis by examining the legislative history of

a different statute, R.C. 2107.33. It noted that the statute's 1976 amendment eliminated

the common-law doctrine of implied revocation, which had treated wills as revoked by

subsequent events like the birth of a child (that is, a "pretermitted" child). After finding that

Bill's will therefore remained valid despite his children's births, the court turned to R.C.

2107.34, the pretermitted heir statute.

{¶ 15} The probate court interpreted the "no provision" clause in R.C. 2107.34(A)

to mean that a valid "settlement" would prevent pretermitted children from taking against

the will. It held that establishing that such a settlement exists requires proof that the

testator intended the provision to substitute for, rather than supplement, inheritance

through the will. When evaluating whether Bill had created a settlement through his non-

testamentary transfers, the court found that the evidence—particularly Bill's text

messages—supported two "plausible" interpretations. But then, rather than applying the

Civ.R. 56 summary judgment standard to this dispute, the court reasoned that R.C.

2107.34 is a remedial statute warranting broad construction. It announced that

"substantial doubts about the existence of a settlement should be resolved in favor of

inheritance by the decedent's children," particularly given the absence of evidence that

the children had "incur[red] the decedent's disfavor" or had a "strained relationship" with

Bill. Based on this analysis, the court concluded that the siblings had not produced

sufficient evidence that Bill intended his non-testamentary transfers to serve as a

settlement in lieu of inheritance. It therefore declared the children to be pretermitted heirs

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whose shares would proportionally reduce the siblings' inheritance.

{¶ 16} The probate court ordered that each child take their intestate share of Bill's

estate. And the court expressly determined that there was no just reason for delay. See

Civ.R. 54(B).

{¶ 17} The siblings appealed, and Evonne and the children cross-appealed.

III. Analysis

A. The Siblings' Appeal

{¶ 18} The siblings present a single assignment of error:

THE TRIAL COURT ERRED IN FAILING TO FOLLOW OHIO CIVIL RULE 56 AND ERRED IN ITS INTERPRETATION AND APPLICATION OF REVISED CODE 2107.34.

{¶ 19} The siblings argue that the trial court erroneously granted summary

judgment to Evonne and the children by (1) misinterpreting R.C. 2107.34(A) and (2) failing

to follow the requirements of Civ.R. 56 when it ignored genuine issues of material fact

and improperly weighed evidence. Central to their argument is the assertion that Bill's

substantial non-testamentary transfers to the children constituted a "settlement" under

R.C. 2107.34(A), thereby precluding the children from claiming pretermitted-heir status

and preventing abatement of the will in their favor.

1. The Statutory Framework

{¶ 20} Our analysis begins, as it must, with the text of the pertinent statutory

provision, R.C. 2107.34(A). State v. Pendergrass, 2020-Ohio-3335, ¶ 5 ("In interpreting

a statute, we begin with the statutory language."). The statute's relevant language

provides:

[First Sentence] [I]f, after making a will, a testator has a child born alive . . ., and no provision has been made in the will or by settlement for the pretermitted child . . ., or for that child's . . . issue, the will shall not be revoked. [Second Sentence] Unless it appears by the will that it was the intention of the

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testator to disinherit the pretermitted child . . ., the devises and legacies granted by the will, except those to a surviving spouse, shall be abated proportionately, or in any other manner that is necessary to give effect to the intention of the testator as shown by the will, so that the pretermitted child . . . will receive a share equal to that which the person would have been entitled to receive out of the estate if the testator had died intestate with no surviving spouse, owning only that portion of the testator's estate not devised or bequeathed to or for the use and benefit of a surviving spouse . . . .

R.C. 2107.34(A).

{¶ 21} The statute operates through two interconnected sentences that establish

a framework for addressing pretermitted children. The first sentence establishes that

when a testator has a child born after making a will, and "no provision has been made

in the will or by settlement for the pretermitted child," the will remains valid despite

the birth. (Emphasis added.) Id.2 This preserves the testator's testamentary intent while

acknowledging the changed circumstances.

{¶ 22} But the first sentence does not stand alone. The second sentence creates

the operative mechanism: it mandates that "the" pretermitted child referenced in the first

sentence (specifically, one for whom "no provision has been made in the will or by

settlement") shall inherit through proportional abatement of the will's devises and

legacies. Id. This inheritance right is subject to an exception: no abatement occurs if the

will demonstrates "the intention of the testator to disinherit the pretermitted child." Id.

{¶ 23} The parties agree that Bill's will contains no language expressing an intent

to disinherit the children. Indeed, the will does not refer to the children at all. Therefore,

the issue before the probate court was whether Bill made a "provision . . . by settlement"

in favor of the children. If such a provision exists, the children fall outside the statute's

2. As the trial court noted, this language preventing automatic revocation of a will is an artifact of previous law, under which a will was automatically revoked when there was a pretermitted child. -8- Butler CA2024-05-070

protection as pretermitted heirs described in the first sentence, and the abatement

procedure in the second sentence cannot apply.

{¶ 24} The interpretive question reveals the fundamental dispute between the

parties. The siblings contend that R.C. 2107.34(A) requires only an objective

determination of whether a settlement exists, without regard to the testator's subjective

intent regarding that settlement. They argue that the statute contains no language

requiring proof of the testator's intent with respect to either the existence of a "settlement"

or its form and quantity. Under their interpretation, the substantial non-testamentary

assets Bill provided to the children constitute a settlement that automatically precludes

their pretermitted-heir status, regardless of Bill's motivations or intentions.

{¶ 25} Evonne and the children advance a different interpretation. They argue that

R.C. 2107.34(A) requires proof of the testator's intent to disinherit after-born children

before those children lose their pretermitted-heir protections. According to their reading,

this intent requirement applies not only to provisions within the will itself but also to any

alleged "settlement" arrangements. Under this theory, Bill's financial arrangements,

however substantial in monetary terms, do not demonstrate the requisite intent to exclude

the children from inheritance under his will and therefore cannot preclude their

pretermitted-heir status.

{¶ 26} We now turn to these disputed questions of textual interpretation.

2. The Elements of "provision . . . by settlement"

{¶ 27} Both the trial court and the parties on appeal have focused their analysis on

the term "settlement" in the first sentence of R.C. 2107.34(A). While this focus is

understandable, a complete interpretation requires examining the full statutory phrase:

"provision . . . by settlement."

{¶ 28} R.C. 2107.34(A) does not define "settlement," let alone a "provision . . . by

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settlement." When a statute does not define terms, "we afford the terms their plain,

everyday meanings, looking to how such words are ordinarily used. This work includes

reading words in their context and construing them 'according to the rules of grammar

and common usage.'" (Citation omitted.) State ex rel. More Bratenahl v. Bratenahl, 2019-

Ohio-3233, ¶ 12, quoting R.C. 1.42; see also State v. Creech, 2024-Ohio-5245, ¶ 98.

{¶ 29} "Our duty in construing a statute is to determine and give effect to the intent

of the General Assembly as expressed in the language it enacted." (Citations omitted.)

Pelletier v. Campbell, 2018-Ohio-2121, ¶ 14. See also Caldwell v. Whirlpool Corp., 2024-

Ohio-1625, ¶ 13 (stating that "'[t]he question is not what did the general assembly intend

to enact, but what is the meaning of that which it did enact'"), quoting Slingluff v. Weaver,

66 Ohio St. 621 (1902), paragraph two of the syllabus. "In other words, in construing the

words of a statute we are to determine the original public meaning of the actual words the

General Assembly enacted and apply that meaning." State ex rel. Moore v. Fornshell,

2025-Ohio-65, ¶ 14, citing Pelletier at ¶ 14, and Caldwell at ¶ 13. See also State v. Howe,

2024-Ohio-5143, ¶ 31, fn. 3 (12th Dist.).

{¶ 30} The phrase "provision . . . by settlement" in Ohio's pretermitted-child statute

has a long history. Section 40 of the "Act Relating to Wills" passed in 1840 appears to

have been the first version of the pretermitted heir statute referring to a "provision . . . by

settlement." That act provided that if a testator had a will and a pretermitted child not

mentioned in the will, then:

such will shall be deemed revoked, unless provision shall have been made for such child by some settlement, or unless such child shall have been provided for in the will, or in such way mentioned therein as to show an intention not to make such provision, and no other evidence to rebut the presumption of such revocation shall be received."

(Emphasis added.) Ash v. Ash, 9 Ohio St. 383, 384 (1859).

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{¶ 31} Legal dictionaries published around the time the phrase "provision . . . by

settlement" entered the pretermitted child statute in 1840, illuminate the original meaning

of "settlement." An 1860 legal dictionary defined "settlement" as "[a] disposition of

property by deed, usually through the medium of a trustee, and for the benefit of a wife,

children or other relations." 2 Alexander M. Burrill, Law Dictionary and Glossary (2d Ed.

1860). Similarly, an 1876 legal dictionary defined it as "The conveyance of an estate for

the benefit of some person or persons." 2 John Bouvier, A Law Dictionary (14th Ed. 1876).

And an 1883 legal dictionary defined "settlement" as "an instrument by which property, or

the enjoyment of property, is limited to several persons in succession . . . [and] implies a

deed or an instrument equivalent to a deed." 2 Rapalje & Lawrence, Dictionary of

American and English Law (1883). None of these historical definitions contain any

language suggesting that a "settlement" implies any intent on the part of the testator who

made the "settlement."

{¶ 32} There is little to no case law on the meaning of "settlement" as used in the

pretermitted heir statute (in any of the forms it took) during most of the 1800s. But in 1889,

the Supreme Court of Ohio provided guidance in Rhodes v. Weldy, 46 Ohio St. 234

(1889). In that case, the Supreme Court explained in dicta that a "settlement" "certainly

implies, if not a sufficient, at least a substantial, present means of maintaining the child."

Id. at 242. The Court elaborated that a settlement typically involves "the intervention of

trustees upon whom is conferred a fund or property in some form which constitutes a

source of maintenance, education, etc." Id. This definition is generally consistent with the

above-quoted legal-dictionary definitions and notably, like those definitions, contains no

reference to testamentary intent.

{¶ 33} The General Assembly subsequently relocated the pretermitted heir statute,

with minimal changes, first to R.S. 5959 and later to G.C. 10561. In 1932, the provision

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underwent another relocation to G.C. 10504-49 and was significantly revised. The revised

language was substantively identical to the current R.C. 2107.34(A), to which the

provision was eventually transferred, differing only in minor and non-substantive word

choices that do not affect this appeal. At the time that the revisions were made, the

definition of "settlement" continued to focus on the act, not intent: "The act of settling

property upon a person or persons; the particular terms of such an arrangement; the deed

or instrument by which it is effected." 9 The Oxford English Dictionary (1933) (definition

of "settlement" in law).

{¶ 34} In 1940, just a few years after this significant revision, the Franklin County

Court of Common Pleas decided City Natl. Bank v. Kelly, Franklin C.P. No. 81587, 1940

Ohio Misc. LEXIS 458 (Oct. 8, 1940), analyzing G.C. 10504-49. The common pleas court

defined "settlement" as "a provision made extraneous to the will for the benefit of an after-

born or after adopted child, with the intention on the part of the settlor that such provision

shall preclude the child from taking any other portion of the testator's estate at the time of

his [the testator's] death." Id. at *16. The Kelly definition appears to be the first time in the

century since "settlement" entered Ohio's pretermitted-heir statute that a court or any

other authority injected an intent-to-disinherit requirement into the definition of

"settlement." Notably, the common pleas court cited no Ohio authority to support this

definition. Instead, the Kelly court relied primarily on the decisions of courts in other states

interpreting their own pretermitted-heir statutes and did not focus on Ohio's statutory

scheme. Id. at *20-31. The absence of supporting Ohio precedent and the definition's

inconsistency with historical understanding significantly undermines Kelly's persuasive

value.

{¶ 35} Based on our examination of the statutory text, historical dictionary

definitions, and limited case precedent, we conclude that "settlement" as used in R.C.

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2107.34(A) does not include or imply any particular intent on the part of the testator. Three

factors compel this conclusion. First, the statutory text contains no explicit intent

requirement. When the General Assembly intends to impose an intent standard, it knows

how to do so clearly, as demonstrated by the statute's explicit reference to "the intention

of the testator to disinherit the pretermitted child" in the second sentence. Second,

historical dictionary definitions consistently describe "settlement" in objective, mechanical

terms without reference to subjective intent regarding disinheritance. Third, no controlling

Ohio precedent establishes that "settlement" implies a testator's intent to disinherit.

Courts may not insert language into statutes that the General Assembly did not include.

State ex rel. Carna v. Teays Valley Local School Dist. Bd. of Edn., 2012-Ohio-1484, ¶ 18

(stating that the Court "must . . . abstain from inserting words where words were not

placed by the General Assembly"). To read a disinheritance-intent requirement into

"settlement" would be to do just that.

{¶ 36} But that is not the end of our analysis. The trial court and the parties have

focused too narrowly on the single word "settlement" while overlooking the complete

statutory phrase in which that word is found: "no provision has been made in the will or

by settlement." (Emphasis added.). When viewed holistically, it becomes clear that we

must determine the meaning of not only "settlement" but also "provision" and the

relationship between these terms. That is, the statute refers to a "provision . . . made in

the will" and to a "provision . . . by settlement," with the same, single instance of the word

"provision" applying both to "will" and "settlement." The grammatical structure strongly

suggests that "provision" carries the same meaning in both contexts. So, what is a

"provision?" And what is a "provision . . . by settlement?"

{¶ 37} We can be certain that the phrase "provision . . . in the will" in the first

sentence of R.C. 2107.34(A) does not include an intent-to-disinherit element. This is the

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case because if it did include that element, the phrase in the second sentence "[u]nless it

appears by the will that it was the intention of the testator to disinherit the pretermitted

child" would be rendered superfluous. See Scalia & Garner, Reading Law: The

Interpretation of Legal Texts, § 26 (2012) (surplusage canon provides that interpretations

that render the text of statutes superfluous are to be avoided).

{¶ 38} The statute's structure suggests that the General Assembly distinguished

between two concepts: (1) the objective question of whether a provision exists, and (2)

the subjective question of whether the testator intended to disinherit. Again, if "provision

. . . in the will" automatically implied disinheritance intent, there would be no need for the

second sentence's explicit intent inquiry. Because the same instance of "provision"

applies to both "will" and "settlement," it logically follows that "provision . . . by settlement"

also does not require proof of disinheritance intent. This interpretation preserves the

statute's internal consistency and respects the anti-surplusage principle.

{¶ 39} But our analysis in the above two paragraphs establishes only that

"provision" does not require intent to disinherit as an element. This still leaves open the

question of what "provision" and "provision . . . by settlement" mean.

{¶ 40} To find the answer, we again turn to historical dictionaries that reveal the

meaning of "provision" at the time it entered the pretermitted heir statute. An 1839 legal

dictionary noted that "provision" arose out of French law and defined the term as follows:

"An allowance granted by a judge to a party for his support; which is to be paid before

there is a definitive judgment. In a civil case, for example, it is an allowance made to a

wife who is separated from her husband." 2 John Bouvier, A Law Dictionary (1839). An

1843 edition of the same legal dictionary retained this definition, but also defined

"provision" as "the property which a drawer of a bill of exchange places in the hands of a

drawee; as, for example, by remittances, or when the drawee is indebted to the drawer

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when the bill becomes due, provision is said to have been made." 2 John Bouvier, A Law

Dictionary (2d Ed. 1843). An 1891 law dictionary contains similar definitions. Henry

Campbell Black, A Dictionary of Law (1891). These legal definitions of "provision" from

the relevant time period often reference specific procedural contexts that do not align

precisely with the pretermitted heir statute's usage of "provision."

{¶ 41} Contemporary general dictionaries, however, provide more applicable

guidance. For example, an 1828 dictionary pertinently defined "provision" as "[t]he act of

providing or making previous preparation," "[t]hings provided; preparation; measures

taken beforehand," and "terms or agreement made, or measures taken for a future

exigency." 2 Noah Webster, An American Dictionary of the English Language (1828). And

an 1841 dictionary defined "provision" as "[t]he act of providing beforehand," "[m]easures

taken beforehand," and "care taken." Johnson's English Dictionary (1841). Likewise, an

1847 dictionary defined "provision" as the "[a]ct of providing; thing provided; terms settled;

care taken; measures taken beforehand." Joseph E. Worcester, A Universal and Critical

Dictionary of the English Language (1847). The 1933 Oxford English Dictionary defines

"provision" generally as "a foreseeing, forethought, precaution, providing, prevention."

The specific meanings most applicable here are, "The action of providing; seeing to things

beforehand; preparing, or arranging in advance; the fact or condition of being prepared

or made ready beforehand" and "Something provided, prepared, or arranged in advance;

measures taken beforehand; a preparation, a previous arrangement; a measure provided

to meet a need; a precaution." 8 The Oxford English Dictionary (1933).

{¶ 42} The common thread linking most of these definitions of "provision" is the

concept of "providing," that is, taking affirmative steps to care for someone's future needs.

The root verb "provide" was defined in 1828 as "[t]o procure supplies or means of defense;

or to take measures for counteracting or escaping an evil," "[t]o furnish; to supply," and

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"[t]o procure beforehand." 2 Noah Webster, An American Dictionary of the English

Language (1828). An 1841 dictionary likewise defines "provide" as "to get ready; to

prepare," "[t]o furnish; to supply," and "[t]o treasure up for some future occasion."

Johnson's English Dictionary (1841). Similar definitions are found in an 1849 dictionary,

Joeseph E. Worchester, A Universal and Critical Dictionary of the English Language

(1849), and the 1933 Oxford English Dictionary, 8 The Oxford English Dictionary (1933)

("to make provision for a person, his needs, etc."). This idea of preparing in advance, of

gathering up for some future occasion, is seen also in the concepts of "care taken," "taken

care of," and "preparation." Which suggests that "provision" in the 1840 pretermitted-heir

statute referred to taking steps to care for someone.

{¶ 43} While none of the definitions we have cited explicitly state that "provision"

has an intent element, they do reveal that "provision" in R.C. 2107.34(A) refers to taking

meaningful steps to care for another person's future welfare. This concept translates

readily to both testamentary and non-testamentary contexts. A "provision . . . in the will"

occurs when a testator includes a child in the will's distribution scheme, effectively "taking

care" of the child after the testator's death. Similarly, a "provision . . . by settlement" occurs

when a testator creates non-testamentary arrangements that meaningfully address a

child's future financial security.

{¶ 44} But a "provision . . . by settlement" requires more than isolated financial

transfers. The historical understanding of "settlement" as involving substantial

arrangements for a person's maintenance suggests that not every financial benefit

constitutes a qualifying provision. So, for example, a single life insurance policy or

investment account, standing alone, may or may not rise to the level of a "provision . . .

by settlement" that would preclude pretermitted-heir status. Whether such a life insurance

policy or investment account constitutes a "provision . . . by settlement" depends on the

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totality of the circumstances.

{¶ 45} To summarize, we conclude that R.C. 2107.34(A) operates through the

following framework. First, when a testator fails to provide for a pretermitted child through

either testamentary provisions or non-testamentary settlements (that is, some non-

testamentary financial, property, or other arrangement), the will remains valid but

becomes subject to potential abatement (first sentence). Second, such unprovided-for

children inherit through proportional abatement unless the will demonstrates an

affirmative intent to disinherit them (second sentence). Third, the determination of

whether a "provision . . . by settlement" exists focuses on whether the testator's non-

testamentary arrangements meaningfully address the child's future financial welfare, not

on whether the testator subjectively intended to exclude the child from testamentary

inheritance. But while proof of the testator's subjective intent to disinherit is not a required

element of this analysis, evidence of the testator's intent regarding the purpose and scope

of non-testamentary arrangements may be relevant to determining whether those

arrangements meaningfully address the child's future welfare under the totality of the

circumstances. The key is whether a financial transfer constitutes meaningful provision

for the child's future care under the totality of the circumstances, not merely that a financial

benefit was provided. The dollar amount of the financial transfer is relevant but not

determinative, and must be evaluated in light of the totality of the circumstances, including

the testator's relative wealth.

{¶ 46} While we acknowledge that R.C. 2107.34(A) reflects the drafting

conventions of the mid-1800s and could benefit from legislative clarification, its meaning

can be determined through careful textual analysis rooted in historical understanding and

established interpretive principles. Should our interpretation prove problematic in

practice, the General Assembly retains the authority to update and clarify the statute's

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language.

3. Genuine Issues of Material Fact Remain

{¶ 47} Having established the proper interpretation of R.C. 2107.34(A), we now

turn to whether the trial court correctly applied summary judgment standards to the

undisputed material facts. For the reasons discussed below, we conclude that it did not,

that genuine issues of material fact precluded summary judgment, and that the trial court

erred in granting Evonne and the children's motion.

{¶ 48} Our interpretation of R.C. 2107.34(A) establishes that determining whether

a "provision . . . by settlement" exists under the statute requires an objective inquiry

focused on whether the testator's non-testamentary arrangements meaningfully address

the child's future financial welfare. This determination does not require proof that the

testator subjectively intended to disinherit the children or to substitute these arrangements

for testamentary inheritance. Although the testator's subjective intent to disinherit is not a

prerequisite, evidence bearing on the testator's understanding of the arrangements'

purpose and adequacy may inform the objective determination of whether the transfers

constitute meaningful provision for the child's welfare. The party opposing pretermitted-

heir status must demonstrate that the financial transfers constitute meaningful provision

for the child's future care, specifically the type of substantial, systematic arrangements for

maintenance that the historical understanding of "settlement" contemplated. This analysis

must be conducted in light of the totality of the circumstances.

{¶ 49} This objective standard differs significantly from an intent-based analysis.

The question is not whether Bill intended his non-testamentary transfers to serve as a

settlement in lieu of inheritance, but whether these transfers, viewed objectively,

constitute the comprehensive provision for the children's welfare that R.C. 2107.34(A)

contemplates. This does not mean that evidence of Bill's intent is irrelevant to the

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analysis. Rather, such evidence may illuminate whether his arrangements objectively

constitute comprehensive provision for his children's future needs, without requiring proof

that he subjectively intended to substitute these arrangements for testamentary

inheritance.

{¶ 50} Under Civ.R. 56(C), summary judgment is appropriate only when "(1) no

genuine issue as to any material fact remains to be litigated; (2) the moving party is

entitled to judgment as a matter of law; and (3) it appears from the evidence that

reasonable minds can come to but one conclusion, and viewing such evidence most

strongly in favor of the party against whom the motion for summary judgment is made,

that conclusion is adverse to that party." Baldwin v. Church of God of Trenton, 2024-Ohio-

1726, ¶ 19 (12th Dist.). We review the trial court's summary judgment decision de novo.

Id.

{¶ 51} The central factual question is whether Bill's non-testamentary

arrangements for the children constitute "provision . . . by settlement" under our

interpretation of the statute. The record establishes several undisputed facts relevant to

the "provision . . . by settlement" analysis. For example, Bill designated his children as

beneficiaries of investment accounts totaling approximately $3.5 million. He established

and funded individual investment accounts in each child's name totaling over $750,000.

These arrangements ensure that each child will receive well over $1 million from non-

testamentary sources, whether or not they receive an inheritance through the will-

abatement procedure under R.C. 2107.34(A). The total value of Bill's estate was

approximately $10 million, with roughly $5.3 million in probate assets and $4.5 million in

non-testamentary assets.

{¶ 52} Although these facts about the value and existence of Bill's financial

arrangements are undisputed, genuine issues of material fact remain regarding whether

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these arrangements constitute "provision . . . by settlement" under the standard

established by our interpretation of the statute.

{¶ 53} The statute's requirement of "provision . . . by settlement" contemplates a

substantial arrangement for a person's maintenance, not merely isolated financial

transfers. See Rhodes, 46 Ohio St. at 242 (explaining that settlement "certainly implies,

if not a sufficient, at least a substantial, present means of maintaining the child" and

typically involves "the intervention of trustees upon whom is conferred a fund or property

in some form which constitutes a source of maintenance, education, etc."). Factual

disputes exist regarding whether Bill's financial arrangements created comprehensive

provision for his children's long-term welfare or represented discrete financial benefits

that fall short of the arrangements the statute requires. While the monetary value is

substantial, questions remain about whether the structure and nature of these transfers

align with the historical understanding of "settlement" as comprehensive provision for

maintenance and support. The determination of whether transfers constitute meaningful

provision for a child's future welfare necessarily depends on contextual factors, including

the size of the overall estate and the family's circumstances.

{¶ 54} While each of Bill's children will receive over $1 million from non-

testamentary sources, genuine factual questions exist about whether this provision is

meaningful or substantial in the context of Bill's $10 million estate and whether it

represents the type of comprehensive care for the children's future that the statute

contemplates. This analysis cannot be resolved on summary judgment because it

requires weighing the relative significance of the transfers against the total estate, the

children's anticipated needs, and the overall family financial circumstances. Evidence of

Bill's statements or conduct regarding the purpose and adequacy of these transfers may

be relevant to this determination, not as proof of an intent to disinherit, but as evidence

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bearing on whether the arrangements objectively provided meaningful care for the

children's future welfare. These determinations involve the type of factual assessments

that preclude summary adjudication.

{¶ 55} Factual disputes also exist regarding the specific structure, timing, and legal

characteristics of Bill's various transfers to the children. Some arrangements appear to

have been revocable, raising questions about whether they provided the stable, ongoing

provision that settlement arrangements historically entailed. The distinction between gifts

inter vivos and settlement arrangements may depend on factual determinations about the

legal structure and permanence of Bill's transfers to the children. These structural

questions bear directly on whether Bill's arrangements constitute the type of

comprehensive, forward-looking provision that distinguishes a "provision . . . by

settlement" from other forms of financial benefit. The resolution of these questions

requires factual development that summary judgment cannot provide.

{¶ 56} The trial court's analysis further demonstrates precisely why summary

judgment was inappropriate in this case. The court acknowledged that the evidence

supported "plausible" alternative interpretations, thereby conceding the existence of

genuine factual disputes. See Baldwin, 2024-Ohio-1726, at ¶ 19. Yet rather than

recognizing that such disputes precluded summary judgment, the court improperly

resolved these ambiguities by applying what it characterized as a presumption favoring

inheritance by the children. This approach violated fundamental summary judgment

principles by weighing evidence rather than determining whether genuine factual disputes

existed. When a court acknowledges that reasonable minds could reach different

conclusions based on the evidence, it has identified precisely the type of dispute that

precludes summary adjudication. The court's subsequent resolution of this dispute

through application of presumptions constituted an improper exercise of fact-finding

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authority.

{¶ 57} The court resolved factual ambiguities against the siblings rather than

viewing the evidence in their favor as Civ.R. 56(C) requires. By applying a policy-based

presumption to decide disputed questions, the court effectively decided the case on the

merits rather than adhering to the constraints of summary judgment procedure. This

approach inverted the proper analysis, which requires viewing disputed evidence in the

light most favorable to the non-moving party.

{¶ 58} The court's reliance on R.C. 2107.34's "remedial nature" as a basis for

resolving factual disputes reflects a fundamental misunderstanding of the relationship

between legal interpretation and factual determination. While statutory construction

principles inform the legal meaning of R.C. 2107.34(A), they cannot justify converting

disputed factual questions into legal ones suitable for summary adjudication. The

remedial nature of a statute may guide interpretation of ambiguous statutory language,

but it cannot resolve genuine disputes about the application of clear legal standards to

contested facts.

{¶ 59} The record contains genuine disputes of material fact regarding whether

Bill's non-testamentary arrangements constitute "provision . . . by settlement" under the

objective standard established by our interpretation of R.C. 2107.34(A). These disputes

concern the comprehensiveness, adequacy, and structural characteristics of Bill's

financial arrangements, all of which are material to determining whether the arrangements

meaningfully provided for his children's future welfare in the manner the statute requires.

{¶ 60} Because genuine issues of material fact preclude summary judgment, the

trial court erred in granting Evonne's motion. On remand, the factfinder must apply the

correct legal standard to determine whether Bill's arrangements, considered in their

totality, constitute the type of substantial, systematic provision for the children's

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maintenance and welfare that the statute contemplates.

4. Due Process

{¶ 61} As a final matter, given our conclusion that summary judgment was

inappropriate, we decline to consider the siblings' alternative argument that applying R.C.

2107.34 violates due process. See Wardrop v. Middletown Income Tax Rev. Bd., 2008-

Ohio-5298, ¶ 31 (12th Dist.) (declining to resolve appellants' alternative constitutional

argument), citing Hall China Co. v. Pub. Util. Comm., 50 Ohio St.2d 206, 210 (1977)

(recognizing "that constitutional issues should not be decided unless absolutely

necessary").

5. Conclusion

{¶ 62} The probate court erred by granting summary judgment on what is

fundamentally a fact-intensive inquiry requiring careful evaluation of complex

circumstances. While both parties present compelling evidence supporting their

interpretations of the facts in evidence, the existence of genuine disputes of material fact

makes this case unsuitable for summary judgment.

{¶ 63} We sustain the siblings' sole assignment of error.

B. Evonne's Cross-Appeal

{¶ 64} Evonne raised one assignment of error in her cross-appeal:

THE TRIAL COURT ERRED IN UNDERTAKING AN ANALYSIS OF WHETHER THERE WAS A "SETTLEMENT" WHEN THE SECOND SENTENCE OF R.C. 2107.34 INDEPENDENTLY COMPELS A FINDING THAT THE CHILDREN ARE PRETERMITTED HEIRS.

{¶ 65} In support of her assignment of error, Evonne argues that the probate court

erred by undertaking an analysis of whether there was a "settlement" when the second

sentence of R.C. 2107.34(A) independently compels a finding that the children are

pretermitted heirs. We disagree with Evonne's proposed interpretation of the statute.

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{¶ 66} Evonne contends that the second sentence of R.C. 2107.34(A) should be

read in isolation, focusing solely on whether the will expresses an intention to disinherit

the after-born children. This interpretation, however, would render the first sentence of

the statute superfluous, violating a fundamental principle of statutory construction. See

State ex rel. Myers v. Bd. of Edn. of Rural School Dist. of Spencer Twp., Lucas Cty., 95

Ohio St. 367, 372-373 (1917).

{¶ 67} The statute must be read as a whole. As we explained above, the first

sentence establishes the conditions under which the statute applies, including the

absence of provision "in the will or by settlement." The second sentence then prescribes

the consequence of meeting those conditions. It is only by reading these sentences

together that statute can be properly understood.

{¶ 68} Evonne's cross-assignment of error is overruled.

IV. Conclusion

{¶ 69} For the foregoing reasons, we conclude that there are genuine issues of

material fact as to whether Bill's children are pretermitted heirs under R.C. 2107.34 and

are entitled to inherit from his estate as if he had died intestate. Therefore the judgment

of the probate court is reversed and this case is remanded for further proceedings

consistent with this opinion. On remand, the probate court should apply the legal standard

we have articulated to determine whether Bill's non-testamentary arrangements

constitute "provision . . . by settlement" under R.C. 2107.34(A), thereby precluding his

children's status as pretermitted heirs entitled to abatement of his will.

HENDRICKSON, J., concurs.

M. POWELL, J., concurs separately.

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M. POWELL, J., concurring separately.

CONCURRENCE INTRODUCTION

{¶ 70} For the most part, I agree with the majority opinion. However, I differ with

the majority's conclusion that a "provision by settlement" under R.C. 2107.34(A) is an

objective concept lacking an intent by a testator that the settlement be in lieu of an after-

born child's other rights of inheritance.3 It is for this reason that I write separately.

OHIO'S PRETERMITTED HEIR STATUTE

{¶ 71} R.C. 2107.34(A) applies only to testate estates in which no provision is

made for an after-born child, by will or otherwise. In such an instance, and depending on

the circumstances, the statute directs that two inquiries be made in determining if the child

may take a modified statutory share of the estate. First, does the will disclose an intention

by the testator to disinherit the child. Second, if an extra-testamentary provision is made

for the child, is the provision a "settlement." If either of these inquiries is answered in the

affirmative, then the child is not entitled to the benefit of the statute.

{¶ 72} The purpose of the statute is to prevent inadvertent disinheritance of after-

born children by requiring the inquiries discussed above. When considering the

interpretation of "provision by settlement" we should recognize that it is common for

parents to make extra-testamentary provisions for their children. Oftentimes parents do

so with no intention that such provisions are in lieu of their children's other rights of

inheritance. This is as true today as it was when the General Assembly enacted Ohio's

original pretermitted heir statute. Interpreting the term "settlement" as a purely objective

concept ignores the practical reality of why parents make extra-testamentary provision

for their children, frustrates the statutory purpose, and permits inadvertent disinheritance

3. Because this case involves children born after the making of Bill's will, this concurring opinion does not speak in terms of the other categories of pretermitted heirs included in R.C. 2107.34(A). - 25 - Butler CA2024-05-070

of a child when an extra-testamentary provision for a child happens to qualify as a

"settlement" pursuant to the majority's objective definition.

THE PRETERMITTED HEIR CASES

{¶ 73} I find no significance in the lack of any reference to a "settlement" involving

intent in the Ohio Supreme Court’s Rhodes v. Weldy opinion. In Rhodes, the Supreme

Court construed a former iteration of the pretermitted heir statute and whether a

testamentary devise of a remainder interest in real property was a "provision by will." In

resolving the issue, the Supreme Court first held that a "provision by will" and a "provision

by settlement" are subject to the same requisites. The Court observed that because a

"provision by settlement" required a "present means of maintaining the child . . . which

constitutes a source of maintenance, education, etc.," then so must a "provision by will."

Rhodes, 46 Ohio St. 234, 242-243 (1889). Because the devise was contingent, as

opposed to a present interest, the Supreme Court reversed the lower courts' finding that

the devise was a "provision by will." As the contingent nature of the devise was

determinative, the Supreme Court had no occasion to address whether a "settlement"

involved an intent that it serve in lieu of other rights of inheritance. Thus, Rhodes is silent

on whether a "settlement" implicates an element of intent and that silence should not be

interpreted as providing guidance on the issue. "A reported decision, although in a case

where the question might have been raised, is entitled to no consideration whatever as

settling, by judicial determination, a question not passed upon or raised at the time of the

adjudication." State ex rel. Gordon v. Rhodes, 158 Ohio St. 129, 131 (1952). Furthermore,

there is no suggestion in Rhodes that the Supreme Court announced an all-inclusive

definition of "settlement." Rather, the Court addressed only the aspects of a "settlement"

which were necessary to resolve the dispute before it.

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{¶ 74} Until now, no court has held that a "provision by settlement" is a purely

objective concept involving no intention by the testator that it serve in lieu of other rights

of inheritance. However, at least two courts have recognized the contrary. The Franklin

County Common Pleas Court addressed the issue in City Natl. Bank v. Kelly, 19 O.O.

231, 1940 Ohio Misc. LEXIS 458 (C.P. 1940), and held that a " '[s]ettlement' is a provision

made extraneous to the will for the benefit of an after-born or after adopted child, with the

intention on the part of the settlor that such provision shall preclude the child from taking

any other portion of the testator's estate at the time of his death." Id. at 235. In Twitchell

v. Alexander & Liggett, Inc., 115 Ohio App. 51 (10th Dist. 1961), the court of appeals

explicitly rejected a contention that designating an after-born child as a life insurance

policy beneficiary was a settlement intended to disinherit the child: "We are unable to see

how the action taken in this case with respect to the insurance is evidence of an intention

to disinherit." Id. at 61. In so holding, the court held that the sole focus must be upon the

"acts done or steps taken by . . . the testator himself as evidence of the testator's intent."

CONCURRENCE CONCLUSION

{¶ 75} Ignoring whether an extra-testamentary provision for a child is intended as

being in lieu of other rights of inheritance promotes rather than prevents inadvertent

disinheritance of after-born children. Such a construction thwarts the statute's purpose.

However, construing "provision by settlement" as requiring an intention that the provision

serve in lieu of the child's other rights of inheritance is consistent with the statutory

purpose and avoids unintentional disinheritance.

{¶ 76} I agree that the trial court erred by granting summary judgment in favor of

Bill's children by failing to construe the evidence most strongly in the siblings' favor, and

that the judgment in favor of the children should be reversed and the matter remanded

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for further proceedings. However, for the reasons set forth in this concurring opinion, on

remand the siblings should be required to prove that the extra-testamentary provisions

made for Bill's children constitute a settlement in that they were intended by Bill to serve

in lieu of the children's other rights of inheritance from him.

JUDGMENT ENTRY

The assignments of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, reversed and this cause is remanded for further proceedings according to law and consistent with the above Opinion.

It is further ordered that a mandate be sent to the Butler County Court of Common Pleas, Probate Division, for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to App.R. 27.

Costs to be taxed in compliance with App.R. 24.

/s/ Matthew R. Byrne, Presiding Judge

/s/ Robert A. Hendrickson, Judge

/s/ Mike Powell, Judge

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