In re: the Matter of the Estate of: CHARLES H EVITT, Deceased.
LESLIE HIATT, et al., Respondents/Appellees. JUDITH EVITT-THORNE, Petitioner/Appellant,
from the Superior Court in Maricopa County No. PB2015-051215
The Honorable Andrew J. Russell, Judge Pro Tempore
Stevens & Van Cott PLLC, Scottsdale By Laurence B.
Stevens, Charles Van Cott Counsel for Petitioner/Appellant
& Cracchiolo PA, Phoenix By Daryl Manhart, Joel K.
Heriford Counsel for Respondent/Appellee Mary Jo Evitt
Cave Leighton Paisner LLP, Phoenix By Sean K. McElenney,
Jacob A. Maskovich Counsel for Respondents/Appellees Leslie
Hiatt and Sandra Evitt
Kent E. Cattani delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M.
In this case, we consider whether a claim based on a divorce
settlement agreement executed years before the decedent's
death, but not enforceable until after death, should be
deemed to have arisen before the decedent's death for
purposes of Arizona Revised Statutes ("A.R.S.")
§ 14-3803. This issue is significant in determining when
the statute of limitations commences on a creditor's
claim against the decedent's estate for breach of such a
settlement agreement. We hold that when a person enters into
a contract obligating him to act while living to ensure a
payment to the claimant at or after his death, a claim for
breach arises before the decedent's death. Accordingly,
and for reasons that follow, we affirm the superior
court's ruling barring Judith Evitt-Thorne's claim
against her ex-husband's estate as time-barred under
A.R.S. § 14-3803.
AND PROCEDURAL BACKGROUND
and Charles Evitt divorced in 1987. Their settlement
agreement included the following provision:
10. Death Benefits to the Wife. If wife shall
survive Husband, Husband agrees to provide wife . . . the sum
of $150, 000.00 upon Husband's death. This provision
shall be deemed satisfied if Husband provides insurance
proceeds from any existing policy of life insurance or any
new policy which Husband may from time to time obtain,
including policies in which the Wife is now or in the future
may be named as the owner and/or beneficiary.
Evitt remarried and moved to Wyoming, where he died in
September 2013. Probate proceedings were initiated in
Wyoming, and Evitt's surviving spouse and their two
daughters were appointed as personal representatives of the
The personal representatives were unaware of the settlement
agreement Evitt made with Evitt-Thorne 26 years before he
died. Preparing to settle the estate, the personal
representatives reviewed Evitt's available business
records and asked Evitt's accountant to identify any
known creditors, debts, or regular payments being made on his
behalf. The personal representatives provided notice to known
creditors pursuant to Wyoming Statutes Annotated
("W.S.A.") § 2-7-205(a)(ii), and provided
notice to the estate's unknown creditors by publication
pursuant to W.S.A. § 2-7-201. The Wyoming probate court
settled the estate in May 2014 and entered a stipulation for
final distribution of the estate in August 2014.
A year after the estate was settled, Evitt-Thorne sent a
letter to Evitt's daughters asserting that she intended
to file a claim against the estate for the amount stated in
the settlement agreement and would initiate probate
proceedings in Arizona if the estate did not respond. The
personal representatives told Evitt-Thorne they were not
aware of an outstanding obligation and believed she had
already been paid all monies owed to her.
Evitt-Thorne initiated probate proceedings in Arizona and
petitioned for allowance of her claim. The personal
representatives intervened and moved for summary judgment
disallowing the claim, arguing it was barred by Wyoming's
nonclaim statute and thus also was barred under A.R.S. §
14-3803(B), which bars claims against a decedent's estate
that arose before the death of the decedent and are barred by
the nonclaim statute of the decedent's domicile. The
superior court granted the motion and awarded ...