Three-week lapse was widow's quarter-million mistake

A widow who stood to take a third of her deceased husband's million-dollar estate will now get only about $66,155 in personal property left to her under the will - all because her request to extend the deadline for electing her statutory share was about three weeks late.

The Court of Special Appeals agreed with the Talbot County Circuit Court that neither the circuit court nor the orphans' court had the discretion to grant the widow's belated request to extend the period of time allowed by law to renounce her husband's will. Although Shirley L. Downes had successfully obtained an extension on four previous occasions, the courts refused to allow a fifth extension because the time allotted in the fourth extension had run out.

[I]f a surviving spouse does not file a petition for extension of time within the originally prescribed period or, as here, the previously extended time period, the spouse is foreclosed from thereafter obtaining additional time to make the election, Judge Mary Ellen Barbera wrote for the court.

Richard J. Magid, Mrs. Downes' attorney on appeal, felt the decision was harsh - particularly in a case where the value of the estate couldn't be determined at the time of Eldridge Downes' death.

The amount of his estate was very unclear - it was very difficult to establish the value, Magid said. It turned out that the estate of her late husband had considerable value.

Under the statute, an extension period is only three months long, he explained.

Someone had to make extensions every 90 days, he noted.

But Charles W. Collett, who represented appellee Gregory Downes, said it was up to the Legislature, and not the courts, to change the law.

I don't know why they have these three-month extensions, but they have them, he said. There's no doubt that the statute is a statute of limitations; it's a very clear limitation on a party's right to elect.

Eldridge Downes died on Oct. 23, 1997, leaving his wife his personal property and a marital trust, to be funded by assets exceeding a certain credit shelter equivalent amount. The shelter amount itself - the amount that a testator could pass to other beneficiaries free of federal tax - went into a residuary trust for the benefit of Gregory, Eldridge Downes' son from a prior marriage.

Since the value of the estate was uncertain, Mrs. Downes, as personal representative, filed for multiple extensions of the period of time in which she could choose to either take under the will, or to receive a spouse's one-third elective share.

While the first four petitions were timely, the fourth extension expired on June 2, 1999. A fifth petition, filed 22 days later, was denied by the orphans' court.

By 2001, the net worth of the estate was determined to be approximately $1,000,000 - and the orphans' court had concluded that, under the will, Shirley was entitled only to the personal property worth $66,155.

Shirley appealed to the circuit court, challenging the denial of her fifth petition. But the circuit court concluded that the law was clear - that the widow had lost her right to choose her one-third statutory share.

Affirming the ruling last week, the Court of Special Appeals rejected Mrs. Downes' arguments that the court had the discretion to extend the election period beyond the mandates of Estates & Trusts Section 3-206. The provision provides that the court may extend the time for election, before its expiration, for a period not to extend three months at a time upon a showing of good cause.

Nothing in the statute or any of the governing rules of procedure allows the orphans' court or the circuit court - to entertain a late petition, Barbera wrote.

WHAT THE COURT HELD

Case:

Shirley L. Downes v. Gregory Downes, CSA No. 1697, Sept. Term 2003. Opinion by Barbera, J. Filed September 13, 2004.

Issue:

Did the lower courts have authority to extend the time in which a widow could elect to take her statutory one-third share of her husband's estate instead of what was bequeathed to her under her husband's will?

Holding:

No; affirmed. The law is clear that the petition for extension must be made before the statutory period, or the latest extension thereof, has expired. Here, the last petition was made 22 days after the widow's fourth extension period had expired.

Counsel:

Richard J. Magid for appellant; Charles W. Collett for appellee.

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