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Divorce Settlement Unenforceable in Probate Case

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Divorce settlement

It’s not uncommon for divorcing couples to negotiate for one spouse to receive a distribution on the death of the other spouse. That arrangement might be by maintaining a life insurance policy, or just an agreement that the spouse’s estate pay a fixed sum on death. Sometimes, though, the planned payment doesn’t work out.

Let’s start with the divorce settlement

In 1987, Charles Evitt and Judith Evitt-Thorne were divorced in Arizona. Their divorce settlement included this provision:

If wife shall survive Husband, Husband agrees to provide wife … the sum of $150,000.00 upon Husband’s death. This provision shall be deemed satisfied if Husband provides insurance proceeds from any existing policy of life insurance or any new policy which Husband may from time to time obtain, including policies in which the Wife is now or in the future may be named as the owner and/or beneficiary.

In other words, Charles Evitt promised to leave $150,000 worth of life insurance to his ex-wife, or to pay that sum from his estate. In theory, that obligation would follow him for the rest of his life.

After the divorce was finalized, Mr. Evitt remarried and moved to Wyoming. He died there in 2013 — more than a quarter-century after his divorce decree was entered. At 87, he no longer had any life insurance policy naming his ex-wife as beneficiary.

The probate in Wyoming

After Mr. Evitt’s death, his widow and his two daughters initiated a probate proceeding in Wyoming. It took about almost a year to complete the probate, but in August, 2014, the Wyoming probate court approved the final settlement of the probate and discharged the personal representatives.

As usual, the probate proceeding had included publication of a “notice to creditors.” That process is intended to notify anyone who might have a claim against the decedent that it is time to make their claim — or lose it.

According to Mr. Evitt’s daughters, they didn’t give specific notice to his ex-wife because they did not know about her claim arising from the divorce settlement. A review of his business records and discussions with his accountant had not revealed the existence of the claim, either.

A year after the end of the Wyoming probate proceeding had concluded, Ms. Evitt-Thorne wrote to Mr. Evitt’s daughters about the divorce settlement provision. She claimed that she was entitled to the $150,000 payment from his estate, and that she would initiate probate proceedings in Arizona if she was not paid.

The probate in Arizona

When Mr. Evitt’s daughters did not pay her the $150,000, Ms. Evitt-Thorne did start an Arizona probate proceeding. She also filed a petition for allowance of her claim in that probate case.

Mr. Evitt’s daughters objected to the Arizona probate case, and asked for summary judgment disallowing the claim. They insisted that Ms. Evitt-Thorne’s claim was barred because she had not filed it within the three-month period allowed under Wyoming law. The Arizona probate judge agreed, and dismissed the probate claim; he also entered judgment against Ms. Evitt-Thorne for $46,926.27 in attorney’s fees.

Ms. Evitt-Thorne appealed the Arizona probate dismissal. She argued that the notice to creditors was ineffective to cut off her claim because it arose at (or after) Mr. Evitt’s death. She also argued that there was a legitimate issue about whether Mr. Evitt’s daughters could reasonably have ascertained her divorce settlement claim existed.

The Arizona appellate decision

Arizona’s Court of Appeals agreed with Mr. Evitt’s daughters (and the Arizona probate court). Ms. Evitt-Thorne’s claim was filed too late — a year too late, in fact — to be allowed and paid. The delay was not the estate’s fault, ruled the appellate court. Ms. Evitt-Thorne needed to be more diligent about making sure that her ex-husband maintained a life insurance policy, or about making her claim against his Wyoming estate. The attorney’s fee award against her was also upheld. In re Estate of Evitt, August 23, 2018.

The Arizona Court of Appeals decision did not address other questions that naturally arise. What business did an Arizona probate court have even considering the probate of Mr. Evitt’s estate? He had lived for years in Wyoming, had all of his property in Wyoming and died there. He owned no property in Arizona, had not lived here for decades, and had no pending court proceedings. Having a creditor in Arizona should not have been sufficient — especially in circumstances where a probate proceeding had been timely and properly initiated and concluded in his home state.

What larger questions can be resolved by Mr. Evitt’s Arizona appellate case? The key message: people who are owed money — even if they have an enforceable court judgment — need to be diligent. A creditor needs to be aware of the location and status of their debtor if they expect to be paid from the debtor’s estate. While the personal representative of a probate estate has an affirmative duty to look for creditors, that does not necessarily guarantee that every creditor will be found.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.