In re Jabbour

276 A.3d 1180

IN RE: ESTATE OF Caleem L. JABBOUR, Deceased

Appeal of: Maura Nicotra, Co-Executrix

No. 13 WAP 2021

Supreme Court of Pennsylvania.

Argued: March 9, 2022

Decided: June 22, 2022

Stephen A. Hall, Esq., Goehring, Rutter & Boehm, Pittsburgh, PA, for Appellant Maura Nicotra

Robert C. Gallo, Esq., William Ray Pelger, Esq., Allegheny County Law Department, Munhall, PA, Christine Marie Selden, Esq., Pittsburgh, PA, for Appellees Terri L. Vargo and Arlene F. Jabbour

BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

JUSTICE WECHT

Pennsylvania's Probate, Estates and Fiduciaries Code ("PEF Code" or "the Code")¹ protects a surviving spouse against disinheritance or omission from his or her late spouse's will. Specifically, Section 2203 of the Code establishes a surviving spouse's "right of election," which entitles the surviving spouse to the "elective share,"² a one-third allotment of enumerated categories of the deceased spouse's property.³

Section 2210 of the Code prescribes procedures that surviving spouses seeking to take against a will—that is, to forego their inheritance as defined by the will, if any, in favor of the elective share—must follow:

(a) How election made. --A surviving spouse's election to take or not to take his elective share shall be by a writing signed by him and filed with the clerk of the orphans’ court division of the county where the decedent died domiciled. Notice of the election shall be given to the decedent's personal representative, if any.

(b) Time limit. --The election must be filed with the clerk before the expiration of six months after the decedent's death or before the expiration of six months after the date of probate, whichever is later. The court may extend the time for election for such period and upon such terms and conditions as the court shall deem proper under the circumstances on application of the surviving spouse filed with the clerk within the foregoing time limit. Failure to file an election in the manner and within the time limit set forth in this section shall be deemed a waiver of the right of election.

(c) Costs. --The costs of filing and recording the election shall be reimbursed out of the estate as a part of the administration expenses.⁴

The instant dispute revolves around the six-month time limit set forth in Subsection 2210(b). The surviving spouse here timely filed her election to take against the will,⁵ but, several years later, petitioned to revoke her election in an attempt to reclaim her testate share. The parties dispute whether a survivor who seeks to revoke a statutory election against the will must do so within the six-month period specified in Subsection 2210(b), even though it speaks only to the time for filing the election, not to the revocation of a prior election. We conclude that the widow here was not permitted to revoke her election after the expiration of Section 2210 ’s six-month time limit.

I. Background

In 1995, Caleem L. Jabbour ("Caleem") married Arlene Jabbour ("Arlene"). Caleem and Arlene each had three children from prior marriages. On November 25, 1998, Caleem and Arlene executed a joint and mutual will. The 1998 will named Arlene as the sole heir of the residue of Caleem's probate assets (and vice-versa). It also designated two co-executrices and two alternative co-executrices. Caleem's daughter, Renee Jabbour ("Renee"), and Arlene's daughter, Terri Vargo ("Terri"), were to serve as co-executrices. If Renee or Terri became unavailable to serve, they would be replaced, respectively, by Caleem's daughter, Maura Nicotra ("Maura"), and/or Arlene's daughter, Tracy Riley.

On December 22, 2014, Caleem died testate. On April 16, 2015, the orphans’ court admitted his will to probate and issued letters testamentary to Terri and Maura, the latter being appointed as co-executrix because Renee predeceased Caleem. At the time of his death, Caleem had numerous bank accounts, some of which were subject to the terms of his will, and thus to the jurisdiction of the probate court. However, several accounts were nonprobate assets—i.e ., "property that passes to a named beneficiary upon the owner's death according to the terms of some contract or arrangement other than a will."⁶

On July 18, 2015, Arlene filed an election to take against Caleem's will. Unlike a testate share, which by definition only accounts for property passing under a will, the elective share under Section 2303 includes certain nonprobate assets. Section 2303 includes those assets in the elective share in order to prevent one spouse from depriving the other of what the legislature has determined to be a reasonable share by, for example, naming one's spouse as the sole testate beneficiary while placing all of one's assets in accounts that transfer upon death to a beneficiary other than the surviving spouse.⁷

On January 15, 2019, Arlene filed a petition to revoke her earlier spousal election against the will, seeking to reclaim her testamentary share of Caleem's estate.⁸ Arlene claimed that she filed the election because she was unaware of the full extent and value of Caleem's nonprobate assets. She sought revocation once she acquired a "sufficient understanding" as to the comparative values of Caleem's probate and nonprobate assets. Arlene's Pet. for Citation and Rule to Show Cause, 1/15/2019, ¶ 12c. Arlene contended that Pennsylvania Rule of Orphans’ Court Procedure 5.4 permitted her to revoke the election at any time.⁹ Id . ¶ 13.

While Arlene's daughter Terri consented to the revocation, Caleem's daughter Maura opposed it. Maura argued that Arlene's revocation petition was untimely. Even if the petition were timely, Maura argued, Arlene failed to meet the burden of proof required to revoke an election. She argued that Arlene was required to demonstrate "that she lacked sufficient information about the nonprobate assets of Decedent's estate passing to other heirs[,]" but failed to do so. Maura's Tr. Br., 6/19/19, at 10.

On June 6, 2019, the orphans’ court held a hearing on Arlene's petition to revoke her election. The parties principally disputed Arlene's knowledge of the extent and value of Caleem's probate and nonprobate assets when she filed her election.

Arlene, the only one who testified at the hearing, contended that, at the time of her election, she was aware of a document that Caleem created, which detailed various accounts that he owned. See Notes of Testimony ("N.T."), 6/6/19, at 26, 30-44. She explained that she discovered the document shortly after Caleem's death, when she searched his office for her birth certificate and for the couple's marriage certificate. Id . at 26. She said the office appeared to have been "wiped out." Id . She stated that the only thing she found in the office was the document, entitled "C.L. Jabbour CD Schedule 2013." Id . at 30. This "ledger" listed the "amounts," "maturity dates," and "interest rates" of various assets, including certificates of deposit, IRA accounts, life insurance policies, and in-trust-for accounts. Id . at 46-49. Several of these accounts named Maura as the beneficiary upon Caleem's death, while others listed Arlene as the beneficiary. Id . at 47, 80-81.

Arlene testified that she was uncertain as to whether the items listed on the ledger accounted for all of Caleem's assets. Id . at 75-76. She explained that the two did not discuss pecuniary matters during their marriage, and that Caleem was very secretive about his finances. Id . at 112-16, 131. According to Arlene, her discovery of the ledger roused her suspicion that Caleem had additional assets of which she was unaware. Id . at 123. She "felt" that some assets "were hidden from her," id . at 20, and believed that the ledger may have been "planted in" Caleem's office as a ruse to convince her that no assets existed beyond those specified on the ledger. Id . at 123. She thus elected against the will, she claimed, in order to "find out what assets [Caleem] had." Id . at 131. She decided to revoke her election after failing to confirm her suspicions. See id . at 78, 140–43.

At the end of the hearing, the orphans’ court invited the parties to submit proposed findings of fact and conclusions of law, remarked that "this is the most convoluted piece of litigation I've ever been involved in in my life," and took the matter under advisement. Id . at 154; see id. at 153-54.

On July 24, 2019, the court entered an order granting Arlene's revocation petition. The court found that Arlene filed the election "out of an abundance of caution because she did not have sufficient information about [Caleem's] nonprobate assets, as her [h]usband was very secretive about his finances." Tr. Ct. Op., 7/24/19, at 2. Moreover, she was "entitled to revoke the [e]lection, now that she has full knowledge of the extent of [her husband's] estate." Id . Maura appealed.

In a unanimous opinion, the Superior Court affirmed. In re Est. of Jabbour , 244 A.3d 1254 (Pa. Super. 2020). Before that court, Maura argued that the orphans’ court erred in permitting Arlene to revoke the election because the revocation "petition was filed 3 years and 6 months after the statutory deadline." Maura's Super. Ct. Br. at 6. Maura contended that Arlene was required to comply with the timing requirement of Subsection 2210(b), which states that "[t]he election must be filed with the clerk before the expiration of six months after the decedent's death or before the expiration of six months after the date of probate, whichever is later." 20 Pa.C.S. § 2210(b). She maintained that the orphans’ court could overlook Arlene's purported noncompliance with the timing requirement only if Arlene demonstrated that fraud prevented her from apprehending her actual share under the will. "Arlene could not revoke the spousal election," Maura argued, because she "made it with full knowledge of the facts of the estate." Jabbour , 244 A.3d at 1258. The Superior Court disagreed.

First, the court observed that "no statute sets forth a...