Tales From the Front – Six Degrees of Separation

Eugene A. DiMonte

A women whose husband recently died hired DiMonte & Lizak when the executors of her husband’s estate filed an action to evict her from the home she and he lived in while they were married. Did she have the right to stay in the home or would she be evicted? DiMonte & Lizak agreed to represent her.

Determining the widow’s rights to her husband’s estate was complicated by at least two factors:

1. Sixteen years ago, when the couple wed, they entered into a marital agreement which provided that in the event they separated, the wife would be entitled to receive a certain amount of his sizeable estate, and that the amount would increase the longer the couple were married before separating. Another section of the agreement stated that if the husband died before his wife, she was entitled to a mere fraction of his estate and would have no rights to the home she and he had lived in during their marriage.

2. Several months prior to dying, the husband filed for divorce, a divorce that was pending at the time of his death.

Which provision of the marital agreement would control the disposition of the husband’s estate?

The executors argued that since the husband predeceased our client, she was not entitled to the marital residence or to more than a small amount of money. DiMonte & Lizak argued that because the couple separated prior to the husband’s death, the property division should be controlled by the provision concerning the couple’s separation and not the pro vision that became effective upon the husband’s death.

As counsel for the surviving spouse, Gene Di Monte, Riccardo Di Monte, Lin Hanson, Jeff McDonald and Paul Greco called on their negotiation and analytical skills, used their expertise in several areas of law including estate, tax, property, marital and civil practice, and developed a litigation strategy which proved to be effective. As an added note of interest, the law of Italy became an issue because part of the real estate owned by the decedent was in Italy. Quite fortuitously, a recent graduate from an Italian law school was interning in our office and she was able to contribute concretely to the benefit of our client.

DiMonte & Lizak persuaded counsel for the estate that the separation formula was a real threat which could result in a jury awarding our client much more than the estate anticipated. A settlement agreement was reached that reflected a property division significantly more favorable to our client than what she would have received if the executors had prevailed. Because of the marital deduction and other tax benefits to the estate, we structured the settlement in a manner that reduced the amount of federal estate taxes to be paid by the estate, thus saving the estate and its beneficiaries more than 50% of the cost of the settlement. This was a “win-win” settlement for everyone.

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