## Facts

- John Bay executed a will in 1983 while married to his first wife, leaving the estate to her, and if she did not survive, to their children, Kelly and Eric, with a stated focus on funding the children’s postsecondary education.
- John and his first wife divorced in 1986; by statute, provisions in favor of the former spouse were revoked, leaving the children as the will’s beneficiaries.
- John married Laura Bay in 1999 but did not revise his will to provide for her.
- After the marriage, John changed his 401(k) beneficiary designation to give Laura 80% and each child 10%.
- John died in 2000. The 401(k) paid out per the beneficiary designation (Laura received about $290,000).
- The probate estate was largely separate property with a net value of about $108,000; the personal representative proposed distributing it entirely to the children under the will.
- Laura claimed an omitted-spouse share of the probate estate under Washington law, which would have given her one-half of the net separate estate.

## Issues

1. Whether a spouse who married the testator after execution of the will and was not provided for in the will was entitled to an intestate share as an omitted spouse.
2. Whether the estate proved, by clear and convincing evidence, that giving the omitted spouse a smaller share (including no share) was more consistent with the decedent’s intent, considering the will and nonprobate transfers.

## Decision

- The court affirmed the probate court’s denial of an intestate share to Laura.
- Although Laura fit within the omitted-spouse statute and was presumptively entitled to an intestate share, the presumption was rebutted under RCW 11.12.095(3).
- Substantial evidence supported the finding that John intended his probate estate to pass entirely to his children, while providing for Laura through the nonprobate 401(k) designation.

## Legal Principles

- An omitted spouse is presumptively entitled to an intestate share when the spouse married the testator after the will’s execution and is not provided for in the will.
- The presumption may be rebutted by clear and convincing evidence that a smaller share, including no share, is more consistent with the decedent’s intent.
- Determining intent may consider the decedent’s overall estate plan, including nonprobate transfers such as retirement beneficiary designations.
- A substantial nonprobate provision for the surviving spouse can support an inference that the decedent intended to exclude the spouse from probate distributions while leaving probate assets to other beneficiaries.

## Conclusion

The court held that the omitted-spouse presumption was overcome because the will’s continued focus on benefiting the children, combined with the decedent’s deliberate nonprobate allocation of most retirement benefits to the surviving spouse, showed clear and convincing evidence that the decedent intended the spouse to receive no share of the probate estate.


Bay v. Estate of Bay, 125 Wash. App. 468, 105 P.3d 434 (Wash. Ct. App. 2005)