Silverwood v. Tokowitz (In re Tokowitz)

541 P.3d 446

In the MATTER OF the ESTATE OF Neal E. TOKOWITZ a/k/a Neal Edward Tokowitz, deceased:

James Silverwood, Personal Representative of the Estate of Neal E. Tokowitz and Randy Green, Trustee of the residual trust established for Carol Tokowitz, Appellants (Objectors),

v.Carol Tokowitz, Appellee (Petitioner).

S-23-0114

Supreme Court of Wyoming.

January 12, 2024

Representing Appellants: M. Jalie Meinecke, Meinecke & Sitz, LLC, Cody, Wyoming. Argument by Ms. Meinecke.

Representing Appellee: Jason Johnson, Davis, Johnson & Kallal, LLC, Cheyenne, Wyoming. Argument by Mr. Johnson.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.

GRAY, Justice.

[¶1] When Neal E. Tokowitz died, he was survived by his wife of 30 years, Carol Tokowitz, and two children from a former marriage. Mrs. Tokowitz asserted her right of spousal election against Mr. Tokowitz's will. After a hearing, the probate court granted Mrs. Tokowitz's right of election. James Silverwood, the personal representative of Mr. Tokowitz's estate, and Randy Green, the trustee of Mr. Tokowitz's revocable trust, appeal. They argue that Mrs. Tokowitz was not legally entitled to a spousal election. We affirm.

ISSUES

[¶2] The Appellants offer four issues, which we consolidate and rephrase:

1. Did the probate court commit reversible error in granting Mrs. Tokowitz's spousal election?

2. Did the probate court err in refusing to rule on Mrs. Tokowitz's rights as a beneficiary under the Neal E. Tokowitz Revocable Trust?

FACTS

[¶3] Mr. and Mrs. Tokowitz were married in 1990. Both had children from prior marriages. Mr. Tokowitz died on April 23, 2021, in Maricopa County, Arizona. Mr. Tokowitz died testate with a "pour-over" will devising all his property to his unfunded revocable trust to "be held and administered in accordance with the terms of the trust." The will, which was executed on January 10, 2012, specified that Mr. Tokowitz was "now domiciled in Park County, Wyoming." Mr. Tokowitz made no provision for Mrs. Tokowitz in the will.

[¶4] Mr. Silverwood, who was named as the personal representative for Mr. Tokowitz's estate, filed a Petition for Probate of Will. The petition alleges that Mr. Tokowitz, at the time of his death, was a resident of Park County, Wyoming. Mrs. Tokowitz asserted her rights to the elective share of Mr. Tokowitz's estate under Wyo. Stat. Ann. § 2-5-101 and to exempt assets under Wyo. Stat. Ann. §§ 2-7-504 and -505. Over Mr. Silverwood's objection, the probate court granted Mrs. Tokowitz's spousal election and set over the exempt assets. Mr. Silverwood and Mr. Green¹ (the trustee of Mr. Tokowitz's revocable trust), collectively referred to here as Appellants, appeal.

STANDARD OF REVIEW

[¶5] We "review a probate court's findings of fact to determine whether they are clearly erroneous, inconsistent with the evidence, or contrary to the great weight of the evidence ...." Powell v. Est. of Fletcher , 2006 WY 21, ¶ 7, 128 P.3d 670, 671–72 (Wyo. 2006) (citing Matter of Est. of Jackson , 892 P.2d 786, 788 (Wyo. 1995) ). We review a probate court's statutory interpretation de novo. In re Est. of Meyer , 2016 WY 6, ¶ 17, 367 P.3d 629, 634 (Wyo. 2016).

In interpreting statutes, we first look to the plain language of the statute to determine the legislature's intent. Wyo. Cmty. Coll. Comm'n v. Casper Cmty. Coll. Dist. , 2001 WY 86, ¶¶ 16–17, 31 P.3d 1242, 1249 (Wyo. 2001) ; Fontaine v. Bd. of Cnty. Comm'rs , 4 P.3d 890, 894 (Wyo. 2000) ; State ex rel. Motor Vehicle Div. v. Holtz , 674 P.2d 732, 736 (Wyo. 1983). We examine the plain and ordinary meaning of the words used by the legislature to determine whether the statute is ambiguous. Wyo. Cmty. Coll. Comm'n , 2001 WY 86, ¶¶ 16–17, 31 P.3d at 1249.

A statute is clear and unambiguous if its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability. Parker Land & Cattle [Co. v. Game & Fish Comm'n , 845 P.2d 1040,] 1043 [(Wyo. 1993) ]. Conversely, a statute is ambiguous if it is found to be vague or uncertain and subject to varying interpretations. Id. ... Ultimately, whether a statute is ambiguous is a matter of law to be determined by the court. Allied-Signal [v. Wyo. State Bd. of Equalization ], 813 P.2d [214,] 219 [(Wyo. 1991) ].

Id. at ¶ 17, 31 P.3d at 1249.

Meyer , ¶ 17, 367 P.3d at 634.

DISCUSSION

I. Did the probate court commit reversible error in granting Mrs. Tokowitz's spousal election?

[¶6] The probate court granted Mrs. Tokowitz's spousal election pursuant to Wyo. Stat. Ann. § 2-5-101, which provides:

Elective share of property.

(a) If a married person domiciled in this state shall by will deprive the surviving spouse of more than the elective share , as hereafter set forth, of the property which is subject to disposition under the will , reduced by funeral and administration expenses, homestead allowance, family allowances and exemption, and enforceable claims, the surviving spouse has a right of election to take an elective share of that property as follows:

(i) One-half (1/2) if there are no surviving issue of the decedent, or if the surviving spouse is also a parent of any of the surviving issue of the decedent; or

(ii) One-fourth (1/4), if the surviving spouse is not the parent of any surviving issue of the decedent.

(b) If a married person not domiciled in this state dies, the right, if any, of the surviving spouse to take an elective share in property in this state is governed by the law of the decedent's domicile at death.

Wyo. Stat. Ann. § 2-5-101(a) – (b) (LexisNexis 2023) (emphasis added).

[¶7] In support of their contention that the spousal election was unavailable to Mrs. Tokowitz, the Appellants proffer three arguments: (1) Mr. Tokowitz was not domiciled in Wyoming; (2) because there was no evidence that Mrs. Tokowitz was entitled to less than 1/4 of the Wyoming estate under the Neal E. Tokowitz Revocable Trust, the district court could not have determined she was entitled to an elective share; and (3) the spousal election is not available when a spouse is a beneficiary in the decedent's trust. We address each argument in turn.

A. Mr. Tokowitz was domiciled in Wyoming.

[¶8] The Petition for Probate of Will alleges that "At the time of death [Mr. Tokowitz] was a resident of Park County, Wyoming, and left an estate therein subject to probate." Mr. Tokowitz's will provides that Mr. Tokowitz is "a married man, now domiciled in Park County, Wyoming." The probate court addressed the statutory requirement that Mr. Tokowitz be "domiciled" in Wyoming and stated that there is little Wyoming caselaw regarding whether "residency equals domicile." While the probate court did not definitively find Mr. Tokowitz was domiciled in Wyoming, it implicitly reached that conclusion when it found Mrs. Tokowitz met the requirements for claiming a spousal share under § 2-5-101.

[¶9] Appellants do not dispute that Mr. Tokowitz was a resident of Wyoming, but contend he was not "domiciled here full time." Appellants argue Mrs. Tokowitz's petition fails because she provided no proof that Mr. Tokowitz was domiciled in Wyoming. Mrs. Tokowitz argues that Mr. Tokowitz was domiciled in Wyoming and that her contention is supported by the Petition for Probate of Will.

[¶10] We have long recognized "a distinction between the ‘residence’ of a person and the ‘domicile’ of a person." Wyo. Ins. Guar. Ass'n v. Woods , 888 P.2d 192, 198 (Wyo. 1994) (citing State ex rel. Sch. Dist. No. 1, Niobrara Cnty. v. Sch. Dist. No. 12, Niobrara Cnty. , 45 Wyo. 365, 376, 18 P.2d 1010, 1013 (1933) ). In 1909, this Court said:

To construe the temporary residence of appellant with his wife in New York to be a change of domicile seems to me to be unwarranted; for, as Mr. Justice Depue said, in Harral v. Harral , 39 N. J. Eq. [279,] 285, 51 Am. Rep. 17 [(1884) ], "to the factum of residence must be added the animus manendi, and that place is the domicile of a person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a present intention of making it his home, unless, or until, something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home." The doctrine laid down by the courts of the United States is that domicile, having been once acquired, continues until a new one is actually acquired animo et facto. 10 Am. & Eng. Encycl. L. 15; Cadwalader v. Howell , 18 N. J. Law, 138 [(1840)]; Clark v. Likens , 26 N. J. Law, 207 [(Sup. Ct. 1857)].

Duxstad v. Duxstad , 17 Wyo. 411, 100 P. 112, 114 (1909) (emphasis added) (quoting Watkinson v. Watkinson , 68 N.J. Eq. 632, 60 A. 931, 933 (N.J. Ch. 1905) ). "Residence" is interpreted liberally. Woods , 888 P.2d at 198. " ‘Domicile’ is narrowly defined: ‘the domicile of a person is the place where he has voluntarily fixed his habitation with a present intent to make it either his permanent home or his home for the indefinite future.’ " Id. (quoting Boswell v. S.C. Ins. Co. , 353 Pa.Super. 108, 509 A.2d 358, 362 (1986) (quoting In re McKinley ’s Est. , 461 Pa. 731, 337 A.2d 851, 853 (1975) )). A "person may have a ‘domicile’ in only one place at a time; however, the same person may be a ‘resident’ of several places at the same time." Woods , 888 P.2d at 198 (citing Casolari v. Pipkins , 253 Ill.App.3d 265, 191 Ill.Dec. 580, 624 N.E.2d 429, 431 (1993) ; In re Yap , 39 Misc.2d 835, 241 N.Y.S.2d 976, 979 (Sup. Ct. 1963) ; Switz. Gen. Ins. Co. v. Gulf Ins. Co. , 213 S.W.2d 161, 163 (Tex. Civ. App. 1948), dismissed ); see also Black v. De Black , 1 P.3d 1244, 1249–50 (Wyo. 2000).

[¶11] The legislature used "domicile" in § 2-5-101. We assume in using this term, the legislature understood the difference between the terms "domicile" and "residence." See Woods , 888 P.2d at 198 (citing Catalanotto v. Palazzolo , 46 Misc.2d 381, 259 N.Y.S.2d 473, 476 (Sup. Ct. 1965) ("noting that the legislature is presumed to be aware of the difference between a ‘resident’ and a ‘domiciliary’ "))...