Metropolitan News-Enterprise


Friday, November 5, 2010


Page 1


C.A.: Widow Must Pay Support to Her Husband’s Previous Wife


By STEVEN M. ELLIS, Staff Writer


The First District Court of Appeal held yesterday that a San Francisco-area widow must continue making support payments to her deceased husband’s previous wife.

Div. Three said that the form of title in real property that passed to the widow upon her husband’s death—joint tenancy—did not shield it from consideration when determining the extent of her personal liability for his obligation.

That ruling followed the panel’s conclusion, in an unpublished portion of its opinion, that the man’s written agreement to support the first wife until she died was sufficient to waive state law providing that such an obligation would normally terminate upon his death.

Bonnie Kircher, the former wife of San Francisco hotel and apartment house operator Vincent Kircher, sued Adelaide Kircher, his widow, when the latter stopped making monthly support payments in 2008, three years after her husband’s death.

Vincent and Bonnie Kircher separated in 1970 following almost 10 years of marriage and entered into a settlement agreement in which he agreed to pay monthly support until either of the two died or she remarried.

The two modified the agreement in 1987, agreeing to increase support and for payment of Bonnie Kircher’s health insurance. The modified agreement provided that the obligation continued until she died, remarried, or lived with another person “in a marital-like relationship” for 30 days, but omitted any language cutting off the obligation at Vincent Kircher’s death.

In 1998, Vincent Kircher married Adelaide Kircher and revised his will to leave his property to her upon his death. He also transferred title to three real properties to himself and his new wife as joint tenants, and continued to meet his support obligations while living.

Upon his death in 2005, his ex-wife filed a creditor’s claim against his estate asserting a claim for past and future obligations under the modified agreement. She filed suit against Adelaide Kircher three years later when the latter terminated the ongoing monthly support payments while continuing to pay for the health insurance.

Bonnie Kircher sought a declaration that Adelaide Kircher was obligated to continue to comply with the terms of the settlement agreement. Adelaide Kircher argued that the support obligations could not be enforced against the real properties she held in joint tenancy with her late husband because a surviving joint tenant takes the property free of creditors’ claims.

In response, Bonnie Kircher asserted that she did not seek a lien on the properties, only to impose liability for continuing payments up to the amount of the properties’ value, and Marin Superior Court Judge Verna A. Adams ruled in her favor.

Adams determined that calculation of Adelaide Kircher’s personal liability for her husband’s debts encompassed property held in joint tenancy, and that the support obligation to Bonnie Kircher survived his passing, and the Court of Appeal agreed in an opinion by Justice Martin J. Jenkins.

Jenkins pointed out that the Probate Code provides that a surviving spouse is personally liable for the debts of a deceased spouse, and that liability is chargeable against property described in Sec. 13551. He said that the properties Vincent and Adelaide Kircher held in joint tenancy fell within that section because the Legislature clearly intended for it to reach all property, including joint tenancies, so long as it could be characterized as community property or the decedent’s separate property.

Noting California’s presumption that property acquired by a married couple is community property, and explaining that characterization of property is not dependent on the form of title, Jenkins wrote:

“At the time of decedent’s death, the property held in joint tenancy by Vincent and Adelaide was presumed to be community property subject to rebuttal by Vincent that it remained his separate property. Either way, the property at issue falls within the ambit of section 13551.”

Justices Stuart R. Pollak and Peter J. Siggins joined Jenkins in his opinion.

The case is Kircher v. Kircher, 10 S.O.S. 6238.


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