Metropolitan News-Enterprise


Thursday, December 30, 2004


Page 1


Heirs Not Liable for Decedent’s Failure to Secure Payments to Ex-Spouse, Court of Appeal Rules


By a MetNews Staff Writer


A provision in a marital settlement agreement and judgment requiring the former husband to establish a trust or annuity to support the former wife after his death cannot be enforced against the ex-husband’s heirs unless a claim is made within a year of his death, the Court of Appeal for this district ruled yesterday.

Even if such the agreed-to post-death benefits are considered support, the limitations provisions of the Probate Code, rather than the more generous provisions of the Family Code, apply, Presiding Justice Dennis Perluss explained for Div. Seven.

The court upheld Los Angeles Superior Court Judge Coleman Swart’s rejection of a suit by Joanne Embree against Jean Louise Embree and the Embree children.

Joanne Embree was married to Alvin Embree from 1968 to 1993 and subsequently married Jean Louise Embree. The divorce settlement and consequent judgment provided that the former husband would pay the ex-wife $1,800 per month in support until she remarried or either of them died.

The agreement also contained a “covenant to will” requiring that Alvin Embree make arrangements that would continue the payments to his ex-wife after he died.

Alvin Embree died in May 2001, leaving his home—apparently his only asset—to his widow and children under the terms of a revocable trust. In December 2002, Joanne Embree sued the widow and children, seeking to impose a constructive trust on the property in order to satisfy the payments required by the MSA and judgment.

The defendants argued that the suit was barred by Probate Code Sec. 366.3(a), which provides that an action to enforce “a promise or agreement with a decedent to distribution from an estate or trust or under other instrument, whether the promise or agreement was made orally or in writing” may be brought within one year from date of death, “and the limitations period that would have been applicable does not apply.”

Joanne Embree’s counsel argued that Family Code Sec. 4502, which provides that a support judgment is “enforceable until paid in full” applied. But Swart sided with the defendants, and the Court of Appeal agreed.

The claim, Perluss wrote, “appears to fall squarely within the ambit of section 366.3.”

The obligation to pay spousal support terminated upon Alvin Embree’s death, Perluss wrote. The requirement that a mechanism be established to pay his ex-wife after his death was “distinct from, and independent of,” the requirement that he pay support during his lifetime.

Even if the obligation were characterized as support, Perluss went on to say, “for all practical purposes the result is the same.” That is because the Probate Code sets forth the exclusive procedures by which a creditor may lay claim to a decedent’s property after it is distributed, Perluss explained.

“Thus, while Joanne’s judgment would remain enforceable under Family Code section 4502 if it were a spousal support judgment, her failure to file a timely claim against Alvin’s beneficiaries protects the property actually distributed to them from being used to satisfy her judgment,” the presiding justice wrote.

Attorneys on appeal were Ronald M. LaBran of Zeutzius and LaBran for the plaintiff and Thomas Daniel Hogue and Carl Edward Langhammer†Jr. of Hogue & Langhammer for the defendants.

The case is Embree v. Embree, B174022.


Copyright 2004, Metropolitan News Company