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ESTATE JELESTER MCDANIELS (12/15/89)

filed: December 15, 1989.

IN RE ESTATE OF JELESTER MCDANIELS, SR., DECEASED. APPEAL OF CORENE FORD MCDANIELS, WIDOW


Appeal from the Order Docketed April 7, 1989, in the Court of Common Pleas of Allegheny County, Orphans Division, at No. 1182 of 1988.

COUNSEL

Paul M. Goltz, Pittsburgh, for appellant.

Arnold H. Cantor, Pittsburgh, for appellee.

Wieand, Tamilia and Hester, JJ.

Author: Hester

[ 389 Pa. Super. Page 501]

This appeal concerns the waiver of post-mortem spousal rights pursuant to an agreement dated September 3, 1976, by and between Jelester McDaniels, Sr. and Corene McDaniels, appellant. We affirm the orphans' court determination that appellant validly and intentionally waived her right to elect to take against Jelester's will insofar as the will governs disposition of Jelester's real estate.

Jelester died testate on January 15, 1988, and letters testamentary were granted to Jelester McDaniels, Jr. on March 10, 1988, pursuant to the probate of a document

[ 389 Pa. Super. Page 502]

    dated March 11, 1983, as the last will and testament of the decedent. The will devises and bequeaths all of the decedent's property to his son, Jelester, Jr., appellee. On April 28, 1988, appellant filed an election to take against the will as decedent's surviving widow. Appellee, in his capacity as executor of the estate, filed a petition to vacate the notice of the election on the grounds that by agreement dated September 3, 1976, appellant relinquished her right to elect to take against the will. A hearing before the orphans' court was held on September 14, 1988, and the original agreement was admitted into evidence.*fn1

At the hearing, it was established that the agreement was drafted at appellant's insistence and by her attorney at a time when she was selling real estate owned in her name alone. It also was established that the parties were separated when the agreement was signed, that they subsequently reconciled, separated again, and reconciled again, and that appellant was living with decedent at the time of his death.

[ 389 Pa. Super. Page 503]

On February 22, 1989, the orphans' court struck appellant's election to take against the will insofar as decedent's real estate was involved. It rejected appellant's argument that the agreement was a separation agreement which was abrogated by the subsequent reconciliation between appellant and the decedent. The court ruled that it was clear from the record and the deposition*fn2 of the lawyer who drafted the agreement that the sole purpose of the agreement was to enable appellant to sell her separate real estate. The court rejected the contention that the agreement was a separation agreement since the preamble contained nothing addressing the separation or a divorce and since the agreement dealt solely with settlement of marital rights in individually-owned real property. The court determined that the agreement was a post-nuptial agreement, that it was not abrogated by the parties' subsequent reconciliation, and that appellant's reliance upon In re Estate of Wagner, 398 Pa. 531, 159 A.2d 495 (1960), was misplaced.

On April 7, 1989, the court en banc denied appellant's exceptions to the order. This timely appeal followed. On appeal, appellant raises one argument in support of her claim that the agreement is invalid. Her contention is that the agreement was a separation agreement, which was abrogated by the ...


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