In re Estate of Evitt

          Appeal 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

          Burch & Cracchiolo PA, Phoenix By Daryl Manhart, Joel K. Heriford Counsel for Respondent/Appellee Mary Jo Evitt

          Bryan Cave Leighton Paisner LLP, Phoenix By Sean K. McElenney, Jacob A. Maskovich Counsel for Respondents/Appellees Leslie Hiatt and Sandra Evitt

          Judge Kent E. Cattani delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.

          OPINION

          CATTANI, JUDGE

         ¶1 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.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2Evitt-Thorne 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.

         ¶3 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 estate.

         ¶4 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.

         ¶5 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.

         ¶6 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 ...