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September 30, 1994



McNAMARA, Egan, Giannis

The opinion of the court was delivered by: Mcnamara

JUSTICE McNAMARA delivered the opinion of the court:

This case involves the calculation of a surviving spouse's share upon the renunciation of her deceased husband's will pursuant to section 2-8(a) of the Probate Act of 1975. (Ill. Rev. Stat. 1991, ch. 110 1/2, par. 2-8(a).) The pertinent facts are as follows.

On August 12, 1990, respondent Mary Carole Clark and the decedent Raymond T. Pericles were married in Atlanta, Georgia. During the first three months of their marriage, respondent resided in Marietta, Georgia, while the decedent resided in Northbrook, Illinois. In November 1990, the couple began living together in Northbrook. Three weeks later, however, the couple separated. In August 1991, respondent moved back to Georgia, where she lived with her three children from a prior marriage. During the period of the couple's separation, a property settlement agreement in contemplation of a divorce was prepared. Although the decedent provided minimal support to respondent during the first nine months of their separation, that support ended in October 1991 when respondent signed the property settlement agreement. The agreement never took effect, however, because the couple's marriage was not legally dissolved. It should be noted that the respondent claims that the decedent continued to provide her with regular, monthly support up until the time of his unexpected death.

On November 24, 1991, the decedent, who was domiciled in Illinois, died testate in Cook County, Illinois. He was survived by respondent and two adult children from a prior marriage, Matthew and Dawn Pericles. At the time of his death, the decedent owned real and personal property in Illinois and real property in Georgia and Florida. He left a will dated February 5, 1991, which contained a specific bequest to respondent in the amount of $25,000, with his residuary estate to his children in equal shares. However, on April 20, 1991, the decedent apparently crossed out the provision in favor of respondent, and on July 15, 1991, he apparently added the language "Carole is to be taken out of my will."

On February 7, 1992, the circuit court of Cook County admitted the will dated February 5, 1991 to probate and appointed as independent executor the decedent's son, Matthew, whom the decedent had named as his personal representative. On February 26, 1992, respondent filed a motion in the trial court to set a hearing on the issue of a spouse's award. On April 30, 1992, the independent executor filed a petition to award respondent the statutory minimum spouse's award of $10,000 based on the termination of all support to her prior to decedent's death. Respondent countered with an amended petition, requesting five-percent of the gross estate or $32,050. She subsequently revised her request, asking for "five percent (5%) of the gross estate of 1.3 millions dollars," or $65,000. On July 15, 1992, respondent filed a renunciation of the will under section 2-8(a) of the Act.

The executor represented to the trial court that the decedent's gross estate totalled approximately $1,400,000 and consisted of (1) intangible personalty wherever located and tangible personalty and realty in Illinois worth about $626,000; (2) commercial property in Gainesville, Georgia worth about $450,000; and (3) a horse farm in Ocala, Florida worth about $248,000.

Respondent argued to the trial court that under section 2-8(a) of the Act, she was entitled to one-third of the decedent's "entire estate," which included his Georgia and Florida properties. She also argued that all estate taxes and expenses should be deducted first from the gross federal estate which includes the out-of-state property prior to calculating her statutory share. The executor countered that respondent was only entitled to one-third of the estate subject to probate in Illinois, thus excluding the Georgia and Florida realty from the computation of her share upon renunciation. He also argued that she was not entitled to any part of the decedent's estate under Georgia or Florida law and that respondent's share upon renunciation should be calculated after the payment of all estate taxes, including the portion generated by the Georgia and Florida properties and other administrative expenses.

After a hearing on April 6, 1993, the trial court held that respondent was entitled to one-third of the decedent's entire estate, including all real property owned by him in Florida and Georgia, after deducting all estate taxes, debts of the decedent and administration expenses. The court also allowed her the minimum spouse's award of $10,000.

On the executor's motion, a rehearing was held on May 14, 1993, whereupon the trial Judge vacated that part of his April 6, 1993 order pertaining to the calculation of the surviving spouse's share. The court ordered that respondent's share on renunciation was to be calculated on the basis of the decedent's property subject to probate in Illinois, that is personal property and real estate located in Illinois. He further held that respondent had no rights on renunciation of the will under Florida or Georgia law, except for a year's support under Georgia law. The Judge also directed the executor to compute respondent's share pursuant to section 2-8(a) after deduction of all federal and Illinois death taxes, debts and other administration expenses in full and without apportionment, with the exception that Georgia and Florida estate and inheritance taxes were not to be charged against the Illinois estate in calculating her share. The executor was further directed to pay the minimum spouse's award of $10,000 within 14 days of the date of the order. Respondent appeals.

On appeal, respondent contends that as the surviving spouse upon renunciation, she was entitled to one-third of the decedent's entire estate, including the value of his out-of-state real property. She argues in the alternative that if we hold that her share must be calculated without inclusion of the value of the Georgia and Florida properties, the costs of administration, including estate taxes, should be apportioned among both the Illinois probate estate and the out-of-state real property.

Respondent first contends that the trial court erred when it held that the decedent's Georgia and Florida properties should not be considered part of his entire estate for purposes of calculating her one-third share upon renunciation of the decedent's will, since such a ruling is contrary to the plain language, manifest intent and settled construction of section 2-8 of the Act.

Respondent asserts that section 2-8 unambiguously requires that all property belonging to the decedent, wherever located, be included in the calculation of the surviving spouse's share upon renunciation. Furthermore, she argues that in order to fully protect and provide for a surviving spouse as the legislature intended, the value of the out-of-state real property should be considered part of the entire estate and that such legislative intent would be frustrated in situations such as the present one where the majority of the decedent's estate consists of out-of-state realty. Moreover, although she acknowledges that no Illinois case has heretofore addressed the precise issue before us, that is whether the phrase "entire estate" as used in section 2-8 of the Act encompasses a deceased's interest in nonresident real estate, ...

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