## Facts

- Ralph M. Bell executed a will and created the Ralph Morris Bell Family Revocable Trust on September 14, 2000, about five months before marrying Vivian Bell.
- The will was a pour-over will devising all probate assets to the trust’s trustee to be distributed under the trust terms.
- The trust directed the trustee, at Ralph’s death, to distribute the entire trust estate to Ralph’s two adult children in equal shares.
- The trust included a default provision referencing distribution as if Ralph had died intestate and unmarried if no living descendants were entitled to distribution.
- Ralph married Vivian in February 2001 and died on April 5, 2005, survived by Vivian and his two adult children.
- Vivian petitioned in district court, claiming she was an omitted spouse under NMSA 1978, § 45-2-301 and entitled to an intestate share, and argued the revocable trust assets should be considered in determining and satisfying that share.
- The district court concluded the will devised Ralph’s estate to the children through the trust and denied Vivian’s omitted-spouse claim; the court certified an interlocutory appeal.
- The Court of Appeals affirmed in part, effectively rejecting Vivian’s omitted-spouse claim based on the estate plan’s pour-over trust structure.
- The New Mexico Supreme Court granted certiorari to review the interpretation and application of § 45-2-301 to a pour-over will and revocable trust arrangement.

## Issues

1. Whether a surviving spouse who married the testator after execution of a pour-over will is entitled under § 45-2-301 to an intestate share that accounts for assets held in a revocable inter vivos trust receiving the probate estate.
2. Whether beneficiaries of a revocable trust are “devisees” within the meaning of § 45-2-301 such that property passing through the trust is treated as “devised” in a way that defeats omitted-spouse protections.
3. Whether any statutory exception in § 45-2-301 (contemplation of marriage, express intent the will remain effective notwithstanding marriage, or provision for the spouse outside the will in lieu of testamentary provision) barred the omitted-spouse claim.

## Decision

- The New Mexico Supreme Court reversed the denial of Vivian’s omitted-spouse claim and remanded for further proceedings.
- The court held that the revocable trust arrangement could not be used to defeat the protections of § 45-2-301 for a spouse omitted from a premarital will.
- The court held that trust beneficiaries were not “devisees” for purposes of § 45-2-301 when the will devised the estate to a trustee and the trust then distributed to the children.
- The court concluded the statutory exceptions to omitted-spouse relief did not apply on the record presented.

## Legal Principles

- A spouse who marries the testator after execution of a will is entitled to an intestate share under § 45-2-301 unless a statutory exception applies.
- Courts interpret § 45-2-301 according to its plain language and do not depart from that language absent ambiguity, mistake/absurdity, or conflict among provisions.
- Beneficiaries under a revocable trust are not “devisees” within the meaning of § 45-2-301 when the will devises property to the trustee and the trust controls ultimate distribution.
- A pour-over will and revocable trust structure cannot be used as a will substitute to avoid an omitted spouse’s statutory share where the spouse is not provided for and the § 45-2-301 exceptions are not satisfied.

## Conclusion

The court held that a later-married surviving spouse may claim an omitted-spouse intestate share under § 45-2-301 notwithstanding a premarital pour-over will and revocable trust favoring the decedent’s children, because trust beneficiaries are not “devisees” under the statute and the statutory exceptions did not bar relief.


Bell v. Estate of Bell, 181 P.3d 708 (N.M. 2008)