from Monroe Circuit Court (CV-14-900125)
Ivey ("Edwyna") appeals from a judgment of the
Monroe Circuit Court ("the trial court") denying
her petition for an omitted-spouse share of the estate of her
late husband, R.E. Ivey ("R.E."). For the reasons
set forth herein, we reverse and remand.
and Procedural History
1975, R.E. executed a will leaving the entirety of his estate
to his first wife, Nancy S. Ivey ("Nancy"), or, in
the event Nancy preceded him in death, to his and Nancy's
four children -- Sharyl I. Eddins ("Sharyl"),
William R. Ivey ("Robbie"), Dell Moody
("Dell"), and Ty Ivey ("Ty") (hereinafter
collectively referred to as "the children") -- in
equal shares. It is undisputed that R.E.'s 1975 will is
the only will he ever executed and that he never executed a
codicil to that will. Nancy died in 2001, and, in 2004, R.E.
married Edwyna. R.E. died on March 26, 2014, survived by
Edwyna and the children. On June 27, 2014, Sharyl, as the
named executor of R.E.'s will, petitioned the Monroe
Probate Court ("the probate court") to admit
R.E.'s will to probate. Edwyna then petitioned the
probate court for an intestate share of R.E.'s estate
pursuant to § 43-8-90, Ala. Code 1975, on the basis that
R.E.'s will contained no provision for her. Section 43-8-90,
the omitted-spouse statute, provides:
"(a) If a testator fails to provide by will for his
surviving spouse who married the testator after the execution
of the will, the omitted spouse shall receive the same share
of the estate he would have received if the decedent left no
will unless it appears from the will that the omission was
intentional or the testator provided for the spouse by
transfer outside the will and the intent that the transfer be
in lieu of a testamentary provision be reasonably proven.
"(b) In satisfying a share provided by this section, the
devises made by the will abate as provided in section
probate court admitted R.E.'s will to probate, and, upon
petition from Sharyl, the trial court subsequently entered an
order removing the administration of R.E.'s estate from
the probate court.
response to Edwyna's petition, Sharyl argued that
Edwyna's omitted-spouse claim was due to be denied on the
grounds that R.E. and Edwyna had "a mutual antenuptial
agreement ... wherein they each ... agreed that neither would
make any affirmative claim in and to the estate of the
other" and that R.E. had made "alternative
provision[s]" for Edwyna in lieu of a testamentary
provision. Specifically, Sharyl alleged that R.E. had
provided for Edwyna by transfer outside his will in that (1)
he "performed substantial renovation work in
[Edwyna's] house in Andalusia, which materially increased
the value of her property, " and Edwyna "had no
labor cost involved in the work" and (2) he and Edwyna
had "established some joint bank accounts with right of
survivorship" that, Sharyl contended,
"substantially exceeded $100, 000 in total value."
On August 8, 2016, the trial court held an evidentiary
hearing on Edwyna's petition, and the testimony and
evidence presented at that hearing provided the following
it was undisputed that R.E. and Edwyna did not execute a
written antenuptial agreement, Sharyl testified that
"there was a verbal agreement made before the marriage,
during the marriage, that ... [R.E.'s and Edwyna's]
estates were separate." According to Sharyl, before R.E.
and Edwyna married, they
"talked about the fact that they had everything planned
out, that what was hers would stay hers and what was his
would stay his and that that's the way they wanted it.
She made the statement that she didn't need anybody's
money. She had her own money and could take care of
further testified that she heard R.E. and Edwyna make similar
statements "many times" throughout the course of
their marriage, and multiple witnesses corroborated
Sharyl's testimony. Lance Eddins ("Lance"),
Sharyl's son, testified that R.E. and Edwyna's
"most prevalent comment was always their affairs were
always separated, meaning that her money was hers and his
money was his." James Moody, Dell's husband and
R.E.'s son-in-law, testified that Edwyna "had made
the statement that whatever [R.E. and Nancy] ... had before
they got married ... belonged to [R.E.] and [the children],
and the only thing [Edwyna] felt like she ... should get ...
was anything [she and R.E.] accumulated while they were
married." Larry Eddins ("Larry"), Sharyl's
husband, testified that "Edwyna would say things like,
I'm not getting into [the children's] inheritance or
that kind of thing."
also testified to a conversation she had "many
times" with R.E. regarding his will:
"I asked him [(R.E.)] ... [D]o you have everything in
order; do you have everything like you want it? He said, I
do, I do. And I said, so you're okay with everything?
You've got everything like you want it? He said, yeah,
you know we have told you over and over that what's
[Edwyna's] is hers and what is mine is mine and that you
know that I have the will ..., and it says exactly what I
want it to say."
testified to a similar conversation he had had with R.E. a
few months before R.E.'s death:
"Q. Did [R.E.] show [the will] to you on that occasion?
"A. Yeah, ... he said, everything is going to be divided
up equally between the four kids -- which I'd already
known that. And he said, y'all don't need to worry
about Edwyna. She's got her few hundred acres, or
whatever it is, out in Conecuh County, farmland. She's
got the insurance money from her son, and then she's got
her retirement and other investments that are out there. She
said --basically, the agreement was, you know, what's
hers is hers, mine is mine, and she's got plenty to take
care of herself.
"Q. Specifically, did he talk about the need or the need
not to make a new will?
"A. He had said -- at one point they had talked about
making new wills, but both of them said it was too expensive
-- back to they're both frugal, and he said, nothing is
going to change anyway, so why change it, other than update
it with new dates."
disputed the testimony indicating that she and R.E. had
agreed that "what was hers would stay hers and what was
his would stay his." She testified: "Until this
[litigation] c[a]me up, I never heard that statement before.
You see, that's all [Sharyl's] relatives that are
swearing that that's what we said." Contrary to the
testimony indicating that R.E. and Edwyna had agreed that
neither of them would be entitled to a share of the
other's estate, Edwyna testified that R.E. intended to
provide her with a share of his estate but that he had
elected not to execute a new will because he believed
"the state" would determine Edwyna's share of
his estate. According to Edwyna, that belief was based on
articles she and R.E. had read in Reader's
Digest, a general-interest periodical. Regarding
those articles and her and R.E.'s understanding of them,
"A. Well, we had the Reader's Digest legal
guide, and in there it said that, if somebody died and left a
widow -- a second marriage, then the state would determine
how much she would get, and it was -- some states is half the
estate and some is a fourth. That's what [R.E.] went by
and what I went by. [R.E.] asked me, are you satisfied with
that? And I said, yes. So he didn't want to go out and
spend money for an attorney.
"Q. You and [R.E.] both discussed this and were
satisfied with whatever the state law required?
"A. That's right."
the provisions R.E. allegedly made for Edwyna by transfers
outside the will, it was undisputed that, when R.E. and
Edwyna began dating, R.E. lived in his house in Monroeville
and Edwyna lived in her house in Andalusia. After they
married, R.E. retained his house in Monroeville, but he and
Edwyna moved into Edwyna's house (hereinafter referred to
as "the marital home") and lived there throughout
their marriage. Edwyna executed a will that gave R.E. a life
estate in the marital home. According to Sharyl, it
"wasn't very far into the marriage" when R.E.
asked her if she and Larry would help Edwyna and him remodel
the kitchen in the marital home. Sharyl testified that she
and Larry were happy to assist with the renovations and that,
in fact, she suggested that Edwyna also make other
renovations that, Sharyl said, would increase the value of
the marital home. Although Edwyna initially resisted making
additional renovations, Sharyl testified that "the
project got bigger and bigger" until it eventually
included a complete remodeling of the kitchen, two bathrooms,
and a sunroom; "re-doing" floors; removing doors
between the kitchen and the living room "to make it more
accessible"; painting; upgrading appliances; and
"doing" garage doors. With the exception of the
replacement of kitchen cabinets, which Edwyna paid a
contractor to replace, Sharyl, Larry, and Robbie provided the
labor for the renovations at no charge to Edwyna. However,
Sharyl testified that Edwyna attempted to pay Larry and her
for their labor but they refused any payment because
"that's the way we wanted it. I would like to do
that for my dad at anytime and for Edwyna."
Sharyl, Larry, and Robbie provided the bulk of the labor
required for the renovations, R.E. and Edwyna purchased the
necessary materials. However, there was no evidence of the
total cost of the materials, and it was unclear how much of
the materials R.E. and Edwyna each purchased separately.
Sharyl testified that Edwyna "wanted it to be just her
money that paid for [the renovations] because that was her
house." However, she also testified that R.E. purchased
"some of the things." It was undisputed that the
renovations to the marital home increased its value, but
there was no evidence as to the actual pre- or
post-renovation value of the marital home. Rather, testimony
merely indicated that, after the renovations, the marital
home was "top-notch" and "pretty close"
to "tip-top condition."
asked why R.E. wanted to renovate the marital home, Sharyl
"Daddy told me that he wanted [the marital home] left so
that, if something happened to him, Edwyna would not be taken
by somebody else, kind of like she was on her sun room. And
he wanted things to be good and to be working so that she
would not be taken by some other person that came along ...
to fix something. He wanted it to be more modernized."
corroborated Sharyl's testimony regarding R.E.'s
motivation for renovating the marital home:
"[Edwyna] had gotten ripped off when she did the
screened-in porch, and I think that was kind of the running
theme, if something happened to him, he didn't want
Edwyna to be ripped off again, so let's get the house in
order, get it more upgraded, so that she ...