## Facts

- In 1964, H. T. Gregory and his first wife, Gladys, signed a written agreement to make reciprocal wills and not revoke them without the consent of all beneficiaries, devisees, and legatees.
- They executed reciprocal wills incorporated into the agreement; the plan placed the residuary estate of the first spouse to die into a trust benefiting the couple’s six children, with the surviving spouse receiving trust income for life and access to principal as trustees deemed necessary.
- Gladys died first; her property passed under the 1964 arrangement into the trust for H. T.’s lifetime benefit.
- H. T. later married Genevive Gregory in the early 1970s.
- In 1979, H. T. executed a codicil granting Genevive a life interest in the marital home, with reversion to the six children at her death; the children consented to the codicil.
- H. T. died in 1990; the 1964 will and 1979 codicil were admitted to probate, and H. T. Gregory, Jr. was appointed executor.
- Genevive filed a surviving-spouse election seeking dower, homestead, statutory allowances, and distribution from the estate, and argued that property acquired during the second marriage should be outside the 1964 arrangement.
- The probate court ruled that the children’s rights under the 1964 contract controlled and rejected Genevive’s elective-share claim and her additional claim to second-marriage-acquired property; Genevive appealed.

## Issues

1. Whether a surviving second spouse’s statutory election (including dower, homestead, and allowances) can defeat or reduce beneficiaries’ rights created by a prior reciprocal-wills contract that became enforceable after the first spouse’s death.
2. Whether the surviving spouse proved that any property acquired during the second marriage was outside the scope of the reciprocal-wills contract and trust plan.

## Decision

- The Arkansas Supreme Court affirmed the probate court.
- The court held that the 1964 agreement and reciprocal wills created enforceable contractual rights in the six children that became binding after Gladys’s death and limited the estate available for Genevive’s statutory election.
- The court upheld the determination that Genevive failed to prove that any assets acquired during the second marriage were distinct from, and not derived from, property subject to the 1964 contractual arrangement.
- The 1979 codicil was treated as a permitted, narrowly limited modification because the children consented; it did not authorize a broader election that would impair the contract beneficiaries’ rights.

## Legal Principles

- A written agreement to make reciprocal wills and not revoke them can be enforced as a contract when supported by consideration and when the first spouse performs and dies in reliance on the arrangement.
- After the first spouse’s death and performance, equity may enforce the agreement against the survivor and treat the survivor as bound to carry out the agreed disposition for the beneficiaries.
- A surviving spouse’s statutory election cannot be used to avoid or defeat a decedent’s preexisting, enforceable contractual obligation concerning disposition of property.
- Modifications to a reciprocal-wills contract that requires beneficiary consent are effective only to the extent consent is given and are construed as limited changes rather than abandonment of the overall plan.
- A party claiming assets are outside a reciprocal-wills contract bears the burden to prove the assets are not part of, or not derived from, property governed by the contract.

## Conclusion

The court enforced the reciprocal-wills contract in favor of the decedent’s children from the first marriage, holding that those contractual beneficiary rights restricted the property available for the second spouse’s elective share and that the second spouse failed to prove any separate entitlement to assets allegedly acquired during the later marriage.


Gregory v. Estate of Gregory, 866 S.W.2d 379 (Ark. 1993)