## Facts

- In 1994, after divorcing Maria Gasper Prestie, W.R. Prestie executed a California pour-over will devising his entire estate to the W.R. Prestie Living Trust.
- The 1994 will and trust named W.R.’s son, Scott Prestie, as trustee and beneficiary and did not provide for Maria.
- In 2001, while Maria was caring for W.R., W.R. amended the inter vivos trust to grant Maria a life estate in his Nevada condominium upon his death.
- A few weeks after the trust amendment, W.R. and Maria remarried.
- W.R. died about nine months after the remarriage without updating the 1994 will.
- Maria petitioned in Nevada probate for an omitted-spouse intestate share under NRS 133.110, asserting the will was revoked as to her because it predated the marriage and did not provide for her, there was no stated intent to exclude her, and there was no marriage contract.
- Scott opposed, arguing the trust amendment “provided for” Maria and should defeat the omitted-spouse claim; he also argued for application of California law and raised equitable estoppel.
- The probate commissioner, and then the district court, concluded NRS 133.110 applied and revoked the will as to Maria, entitling her to an intestate share.
- Scott appealed.

## Issues

1. Whether an amendment to an inter vivos trust may be used to rebut revocation of a premarital pour-over will as to a surviving spouse under NRS 133.110.
2. Whether equitable estoppel can bar a surviving spouse from claiming an omitted-spouse intestate share when the spouse also received a benefit under the decedent’s inter vivos trust.
3. Whether California law governs the omitted-spouse question when the will and trust were executed in California but the decedent was domiciled in Nevada at death.

## Decision

- The Nevada Supreme Court affirmed the order revoking the will as to Maria and awarding her an intestate share.
- NRS 133.110’s text barred consideration of the trust amendment as rebuttal evidence because the statute limits rebuttal to what appears in the will (or a marriage contract) and provides that no other rebuttal evidence may be received.
- Equitable estoppel did not apply to prevent Maria from asserting her statutory omitted-spouse rights.
- Nevada law applied because W.R. was domiciled in Nevada at death.

## Legal Principles

- Under NRS 133.110, if a testator marries after executing a will and the will neither provides for the surviving spouse nor states an intent to exclude the spouse, and there is no marriage contract, the will is revoked as to the spouse.
- When the omitted-spouse statute states that “no other evidence” to rebut revocation may be received, courts may not rely on extra-statutory evidence, including amendments to an inter vivos trust, to defeat the spouse’s statutory share.
- A pour-over will and an inter vivos trust are distinct instruments for purposes of applying a will-based revocation-by-marriage statute.
- Equitable estoppel cannot be used to defeat a spouse’s statutory omitted-spouse entitlement where the claimed inequity rests on benefits arising from a separate inter vivos trust.
- For probate questions of this kind, the law of the decedent’s domicile at death governs.

## Conclusion

The court held that Nevada’s omitted-spouse statute operates strictly according to its terms: a premarital pour-over will that does not provide for a later spouse (and lacks an express intent to exclude and a marriage contract) is revoked as to that spouse, and a later trust amendment benefiting the spouse cannot be used to rebut revocation or to support an equitable bar to the statutory intestate share.


In re Estate of Prestie, 122 Nev. 807, 138 P.3d 520 (2006)