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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pestrikoff v. Hoff (6/8/2012) sp-6679

Pestrikoff v. Hoff (6/8/2012) sp-6679


MICHAEL PESTRIKOFF, ANNA                         ) 

RAE BENT, and LISA D. BENT,                      )       Supreme Court No. S-14323 


                  Appellants,                    )       Superior Court No. 3AN-07-01528 PR 


        v.                                       )       O P I N I O N 


CHARLES A. HOFF and ESTATE                       )       No. 6679 - June 8, 2012 

OF DOROTHY MORRISON,                             ) 


                  Appellees.                     ) 


                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Mark Rindner, Judge. 

                Appearances: Robert C. Erwin and Roberta C. Erwin, Robert 

                C. Erwin, LLC, Anchorage, for Appellants. Patrice A. Icardi, 

                Law   Office   of   Patrice   A.   Icardi,   Anchorage,   for   Appellee 

                Charles      A.   Hoff.    LeRoy       E.   DeVeaux,      DeVeaux       & 

                Associates,      Anchorage,     for   Appellee    Estate   of   Dorothy 


                Before:       Carpeneti,     Chief   Justice,   Fabe,    Winfree,    and 

                Stowers, Justices. 

                WINFREE, Justice. 


                A woman died intestate survived by her husband and three adult children 

from   a   previous   marriage.     The   husband   had   acquired   a   boat   for   a   fishing   charter 

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business during his marriage to the decedent; the boat and charter business were titled 

in his name alone.   Relying on principles of equitable distribution for divorce cases, the 

estate's personal representative asked the court to include half the value of the boat and 

a skiff in the estate's property because marital funds had been used to purchase them. 

The   court   denied   this   request,   and   the   estate's   assets   were   distributed   according   to 

statute.   The children appeal, contending their mother's estate held an undivided interest 

in the boats and business. Because the superior court correctly decided that the equitable 

distribution framework for divorce proceedings does not apply in probate proceedings, 

we affirm its decision. 


                Dorothy Morrison died largely intestate in July 2007.1              She was survived 

by three adult children and her husband of 15 years, Charles Hoff.  The court appointed 

Hoff personal representative of Morrison's estate.              After Hoff filed an estate property 

inventory, Morrison's children objected that he had omitted significant assets, alleging 

in part that Morrison and Hoff jointly owned a commercial fishing boat.                      Hoff later 

agreed     to  LeRoy    DeVeaux's      appointment      as  successor    personal    representative     to 

minimize the dispute between the parties. 

                DeVeaux   petitioned   the   court   to   declare   that   the   estate   had   title   to   an 

undivided one-half interest   in   the M/V DARIA and a skiff (collectively "the boats"). 

DeVeaux alleged that the boats were purchased with marital funds during Morrison's 

marriage to Hoff and that Morrison worked as a crew member on the DARIA , which was 

used in a fishing charter business.          DeVeaux argued that the estate had an ownership 

interest in the boats and in any money the business earned after Morrison's death. 

        1       Morrison had a will for her Ouzinkie Native Corporation stock. 

                                                   -2-                                               6679 

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                Hoff objected to the petition, arguing there was no legal or factual basis for 

including the boats or the charter business as property of the estate. He disputed whether 

Morrison participated actively in the business and said he and Morrison intended for the 

boat to remain his separate property.          He contended that laws related to the equitable 

distribution of marital property did not apply outside the divorce context.                  Hoff also 

relied   on  Faulk   v.   Estate   of   Haskins2 to   argue   that   Alaska   law   presumes   personal 

property possessed and used by spouses during a marriage is held as a tenancy by the 

entirety, with the property becoming the sole property of the surviving spouse after the 

death of one spouse. 

                No party asked for a hearing on the petition, and none was held; the probate 

master recommended that the superior court deny the petition, and the superior court did 

so.   In its written decision, the superior court interpreted several of this court's opinions 

as limiting the concept of marital property to divorce cases and noted that Faulk did not 

prevent married couples from holding property as individuals.  The court decided there 

was strong evidence that the couple meant Hoff to "preserve individual title" and noted 

the only evidence to the contrary was that Morrison "worked on the boat occasionally 

and helped with her husband's business." 

                The personal representative later proposed a distribution of the estate's 

assets, which the court approved.   Morrison's children objected to the final accounting, 

again arguing that the boats should have been included as assets of the estate.  The court 

approved the proposed distribution and released the personal representative. 

                Morrison's children appeal the superior court's decision not to include an 

interest in the boats and the charter business as property of the estate. 

        2       714 P.2d 354 (Alaska 1986). 

                                                   -3-                                               6679 

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                We   review     questions   of   law  de   novo,   adopting   the   rule   of   law  most 

persuasive in light of precedent, reason, and policy.3         We interpret statutes according to 

reason,    practicality,   and  common      sense,   considering    the  meaning     of  the  statute's 

language, its legislative history, and its purpose.4 


                Alaska Statute 13.12.101(a) provides: "A part of a decedent's estate not 

effectively disposed of by will passes by intestate succession to the decedent's heirs as 

prescribed in AS 13.06 - AS 13.36, except as modified by the decedent's will."                  In the 

probate code, " 'estate' includes the property of the decedent . . . as originally constituted 

and as it exists from time to time during administration."5         " '[P]roperty' means anything 

that may be the subject of ownership, and includes both real and personal property and 

an interest in real or personal property."6       The children ask us to interpret "property" in 

the probate code as encompassing an undivided one-half interest in the boats and the 

charter business. 

                Hoff was listed as the sole owner of the boats on the purchase documents. 

On the bill of sale for the DARIA none of the boxes showing an alternative "manner of 

        3       Olson v. City of Hooper Bay, 251 P.3d 1024, 1030 (Alaska 2011) (quoting 

Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 177 P.3d 1181, 

1184 (Alaska 2008)) (internal quotation marks omitted). 

        4       In   re   Estate   of   Maldonado ,   117   P.3d   720,   725   (Alaska   2005)   (citing 

Alyeska Pipeline Serv. Co. v. DeShong , 77 P.3d 1227, 1234 (Alaska 2003)); Grimm v. 

Wagoner, 77 P.3d 423, 427 (Alaska 2003) (citing Native Vill. of Elim v. State , 990 P.2d 

1, 5 (Alaska 1999)). 

        5       AS 13.06.050(14). 

        6       AS 13.06.050(39). 

                                                  -4-                                            6679

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ownership" - such as joint tenancy - was checked.                  The only evidence of business 

ownership in the record was a print-out from the State of Alaska's website showing a 

business   license,   issued   less   than   four   months   before   Morrison's   death,   for   a   sole 

proprietorship with Hoff alone listed as the owner. 

                Morrison's children do not discuss the effect of title, arguing only that 

relying solely on title would contravene Married Women's Acts, which "abolished the 

common law unity of husband and wife."7               But because Alaska   is not a community 

property state,8 title cannot be disregarded in determining which spouse owns property 

at death.9  There is a presumption that the person with title owns the property.  In cases 

of real property, we have held that "this presumption may not be overcome by 'mere 

surmise and conjecture.' "10 And AS 28.10.261(a) provides that when title to a motor 

vehicle is at issue in   a civil or criminal proceeding, "the record of registrations and 

certificates of title as they appear in the files and records of the department are prima 

facie evidence of the ownership or right to possession."             In this vein, we conclude that 

        7       Carver   v.   Gilbert,   387   P.2d   928,   931  (Alaska    1963)   (construing    AS 


        8       See Clauson v. Clauson, 831 P.2d 1257, 1262 (Alaska 1992) (noting Alaska 

is an equitable distribution state but California is a community property state).              Alaska 

permits spouses to enter into a written agreement classifying some or all of their property 

as community property.  AS 34.77.090.  The Alaska Community Property Act provides 

for treatment and division of community property at death.              AS 34.77.150-.155. 

        9       See UNIF . PROBATE CODE , Art. II, Pt. 2, gen. cmt. (Revised 1990 Version) 

(amended 1993), 8 U.L.A. 94 (1998) ("[I]n the common-law (title-based) states . . . [t]he 

regime is one of separate property.        Each spouse owns all that he or she earns."). 

        10      St. Paul Church, Inc. v. Bd. of Trs. of the Alaska Missionary Conference of 

the United Methodist Church, Inc., 145 P.3d 541, 554 (Alaska 2006) (quoting Sugg v. 

Morris , 392 P.2d 313, 316 (Alaska 1964)). 

                                                  -5-                                            6679

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because   Hoff's   name   alone   was   on   the   title   to   the   boats   and   the   business,   he   was 

presumptively the sole owner of the property. 

                In Faulk we held that "the personal property which a husband and wife 

jointly possess and use is presumed to be held in tenancy by the entirety" rather than a 

tenancy in common.11        Faulk concerned personal property either titled in both spouses' 

names or untitled.12      Here the superior court correctly observed that nothing in Faulk 

limited a married couple's ability to "preserve individual title" in property; in Faulk we 

noted a married couple could show individual ownership "by appropriate documents or 

by other evidence which can overturn the presumption of joint ownership."13                      In this 

case, Hoff's name alone was on the title to the boats and the business, presumptively 

indicating he owned them in his individual capacity. 

                The presumption of ownership based on title does not apply the same way 

in divorce cases. Alaska Statute 25.24.160(a)(4) authorizes a court in a divorce judgment 

to divide the parties' "property, including retirement benefits, whether joint or separate, 

acquired     only   during   the   marriage,   in  a  just   manner."     For   equitable   distribution 

purposes, all property acquired during a marriage is presumed to be marital property.14 

        11      714 P.2d 354, 355 (Alaska 1986). 

        12      Id. at 354-55. 

        13      Id. at 355 (quoting DuPont v. DuPont , 98 A.2d 493, 496 (Del. Ch. 1953)) 

(internal quotation marks omitted). 

        14       Coffland v. Coffland, 4 P.3d 317, 321 (Alaska 2000) (citing Johns v. Johns , 

945   P.2d   1222,   1225   (Alaska   1997); Jones   v.   Jones ,   942   P.2d   1133,   1136   (Alaska 


                                                   -6-                                             6679

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But the concepts of marital property and its equitable distribution do not apply at the 

death of a spouse.15 

                Morrison's children attempt to justify the use of equitable distribution in 

probate     by  arguing    that  the  probate    code,   like  the  divorce    code,   recognizes    the 

partnership theory of marriage.  In In re Estate of Maldonado we found "unconvincing" 

a   surviving    spouse's   "request   to   settle   the   .   .   .   dispute   on   marriage-as-economic- 

partnership grounds" and noted that our legislature's changes to the language of Uniform 

Probate Code (UPC) revisions made it "to some extent unclear whether the legislature 

approved the economic partnership justification behind the elective share statutes."16  But 

even if the legislature accepted a partnership theory of marriage when it amended the 

Alaska Probate Code in 1996,17 nothing suggests the legislature intended that property 

would be retitled on the death of one spouse, which is the effect of Morrison's children's 

proposed construction of the statute. In fact, the UPC drafting committee considered and 

failed to adopt the retitling approach Morrison's children suggest here.18 

                Morrison's children's arguments are also contrary to the intent of the 1990 

UPC revisions adopted in part by our legislature in 1996.19           The UPC revisions increased 

the surviving spouse's share of an intestate decedent's estate, even when the decedent 


78 (3d ed. 2005) ("If [a] marriage ends in death rather than divorce, the marital property 

rights never vest and distribution is made under the law of decedent's estates."). 

        16      117 P.3d 720, 724 & n.20 (Alaska 2005). 

        17      Ch. 75, SLA 1996. 

        18      Lawrence   W.   Waggoner,        The   Multiple-Marriage   Society   and   Spousal 

Rights Under the Revised Uniform Probate Code , 76 IOWA L. REV . 223, 245-47 (1991). 

        19      Ch. 75, SLA 1996. 

                                                  -7-                                             6679

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left children from another marriage.20        The drafters of the UPC revisions recognized this 

would give the surviving spouse the entire estate in smaller estates.21                 The surviving 

spouse's increased intestate share was "in addition to any nonprobate property to which 

she   might   succeed   by   reason   of   the   decedent's   death   such   as   joint   tenancies,   joint 

checking, savings or money-market accounts, life insurance, and pension benefits."22 

The revisions were based in part on empirical evidence that most people choose to give 

their property to their spouses, even when they have surviving children.23                The drafters 

recognized that there was some tension in stepparent situations, and sought to "strik[e] 

a   reasonable    balance    between     the  claim   of  the   surviving    spouse    and  that   of  the 

decedent's children."24      In the end, "[t]he dominant objective [of the revised UPC] is to 

grant the surviving spouse an adequate share."25 

                Our legislature was aware of the policy expanding protections for surviving 

spouses when it amended the Alaska Probate Code in 1996. It heard extensive testimony 

from members of the Alaska Bar Association's probate section concerning the elective 

share provisions.26     During a hearing Representative Con Bunde asked Bob Manley, a 

probate attorney testifying about the bill, whether children from a previous marriage 

        20      UNIF . PROBATE       CODE        2-102 cmt.   (amended   1993),   8   U.L.A.   81-82 


        21      Waggoner, supra note 18, at 233. 

        22      Id. at 234. 

        23      Id. at 230. 

        24      Id. at 233. 

        25      Id. 

        26      Minutes, H. Judiciary Comm. Hearing on H.B. 308, 19th Leg. 2d Sess. 

(Oct. 16, 1995) (testimony of Bob Manley, Jerry Kurtz, & Deborah Randall). 

                                                   -8-                                             6679

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were addressed in the revised intestacy provisions; Mr. Manley outlined the intestacy 

provisions and said "the probate [section of the Alaska Bar Association] with some 

experience in the area, seemed . . . to think that it was a reasonable compromise in . . . 

terms of what people probably would want or should want."27 

                 Adopting   the   children's   suggested   construction   of   the   probate   statutes 

would   conflict   with   the   legislature's   framework   for   surviving   spouses,   undo   estate 

planning      based    on   title,  and  impose     significant    administrative     burdens     in  probate 

proceedings.       The   children   cite   no   legislative   history   or   other   Alaska   authority   to 

demonstrate that our legislature intended all property acquired during a marriage to be 

retitled at one spouse's death.         The children rely on In re Estate of Lane , in which the 

Kansas   Court   of   Appeals   affirmed   a   trial   court's   decision   that   farm   equipment   was 

jointly owned by two spouses, even though the property was titled only in the husband's 

name.28    But the Kansas court did not apply equitable distribution principles to arrive at 

its   conclusion;   it   looked   at   evidence   of   the   "intent   and   conduct"   of   the   spouses   to 

determine whether they were co-owners of the property and decided that substantial 

evidence supported the trial court's finding that they were.29 

                 We     therefore    reject   the  children's     argument      that  divorce-like     marital 

property concepts and equitable distribution should apply in probate proceedings, and 

continue our reliance on title concepts for the determination of a decedent's estate.  But 

we   do   not   hold   that   title   creates   an   irrebuttable   presumption   of   ownership.     Alaska 

Statute 13.06.015 permits a court to apply equitable principles to supplement the probate 

code, and we have acknowledged that a constructive trust might be imposed on property 

         27      Id. at 6. 

         28       188 P.3d 23, 28-29 (Kan. App. 2008). 

         29      Id. 

                                                      -9-                                                  6679 

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in   a   probate   case   in   appropriate   circumstances.30   Here   the   children   presented   no 

evidence of misconduct by Hoff justifying a departure from intestacy laws, nor that Hoff 

and Morrison actually intended the boats and business to be jointly owned, nor that title 

had wrongfully or erroneously been placed only in Hoff's name.31              The trial court looked 

at title and decided that this "strongly evidenc[ed] an intent to preserve individual title" 

in Hoff.   As neither the estate nor the children asked for a hearing or offered specific 

evidence to the contrary, the court correctly determined the property was Hoff's sole 

property and was not part of Morrison's estate. 


                We AFFIRM the superior court's decision. 

        30      See Riddell v. Edwards, 76 P.3d 847, 855-56 (Alaska 2003). 

        31      Cf.  Tolan v. Kimball, 33 P.3d 1152, 1155-56 (Alaska 2001) (per curiam) 

(reaffirming   earlier   holding   that   division   of   property   from   a   non-marital   domestic 

partnership is governed, to the extent ascertainable, by the parties' express or implied 

intent, and rejecting rule that title or possession necessarily equals ownership). 

                                                 -10-                                              6679 

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