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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Estate of Jerry Hatten (4/26/2019) sp-7359

In the Matter of the Estate of Jerry Hatten (4/26/2019) sp-7359

          Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

           corrections@akcourts.us.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                      



In  the  Matter  of  the  Estate  of                            )  

                                                                )                                     

                                                                     Supreme Court No. S-16402  

              

JERRY HATTEN.                                                   )  

                                                                                                                               

                                                                )    Superior Court No. 3KN-13-00028 PR  

                                                                )  

                                                                                         

                                                                )    O P I N I O N  

                                                                )  

                                                                                                        

                                                                )    No. 7359 - April 26, 2019  



                                                                                                            

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

                                                                                   

                     Judicial District, Kenai, Anna Moran, Judge.  



                                                                                                                  

                     Appearances:  Andrew J. Fierro, Law Offices of Andrew J.  

                                                                                                           

                     Fierro,  Anchorage,  for  Appellant  Beverly  Toland.                                 Sonja  

                                                                                                               

                     Redmond,  Law  Office  of  Sonja  Redmond,  Soldotna,  for  

                                                                                                               

                     Appellee  Katrina  Hatten,  Personal  Representative  of  the  

                                              

                     Estate of Jerry Hatten.  



                                                                                                      

                     Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  

                                          

                     and Carney, Justices.  



                                          

                     WINFREE, Justice.  



I.         INTRODUCTION  



                          

                                                                                                                                    

                     A man died intestate after cohabiting for over 20 years with a woman. The  



                                                                                                                         

decedent had named the woman as the sole beneficiary of his individual retirement  



                                                                                                                            

account, but he did not provide for her to inherit any of his other assets.  She sought a  



                                                                                                                                    

larger share of his estate, arguing that (1) the decedent had promised to support her  



                                                                                                                                     

financially if she moved to Alaska to live with him and (2) the court should divide the  



                                                                                                                                       

decedent's property according to their intent because they were domestic partners.  A  


----------------------- Page 2-----------------------

                                                                                                                               

special master recommended rejecting her claims, and the superior court adopted the  



                                                                                                                           

master's recommendation.  Because we conclude that the superior court did not err in  



                                                                                                                               

interpreting the scope of the parties' alleged contractual agreement or in rejecting the  



                                                                

woman's domestic partnership claim, we affirm.  



                                  

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                                                

                    Jerry Hatten and Beverly Toland met in California in 1989.  Hatten, who  



                                                                                                                    

lived in Alaska, returned to California in 1992 and reconnected with Toland. According  



                                                                                                                              

to Toland, Hatten asked her to leave her job, friends, and family behind to live with him  



                                                                                                                                 

in Kasilof.  Hatten purportedly assured her that if she relocated "he would take care of  



                                                                                                                               

[her]" and that she "wouldn't have to work."  Toland agreed, and she moved into the  



                                                                                             

house that she would occupy with Hatten for over 20 years.  



                                                                                                                      

                    Hatten was a commercial fisherman and paid for most of the couple's  



                                                                                                                                  

shared expenses.   Toland worked at various jobs, first at a grocery store, then at a  



                                                                                                                              

cannery, and later as a bartender.  She also saw to domestic chores, such as cooking and  



                                                                                                                       

cleaning.  According to Toland, neither she nor Hatten had any other romantic partners,  



                                                                                                                               

there was never any period of physical separation between them, and they shared a bed  



                                                                                                                         

until the final years of Hatten's life, when he was experiencing discomfort from various  



                                                     

ailments and opted to sleep on the couch.  



                                                                                                                       

                    Neither Toland nor Hatten wanted to formally marry; each had previous  



                                                                                                                         

marriages  ending  in  divorce.                    Hatten's  and  Toland's  financial  and  legal  affairs  



                                                                                                                            

consequently were less intertwined than their shared daily life. They had two joint credit  



                                                                                                                         

cards,  but  they  maintained  separate  checking  accounts.                              Most  significantly,  Hatten  



                                                                    

exclusively owned the house they lived in.  



                                                                                                                             

                    Hatten built the house in 1978 and paid off the building loan shortly after  



                                                                                                                           

Toland's arrival in Alaska. In 1998 he obtained a loan to purchase the leased land where  



                                                               -2-                                                         7359
  


----------------------- Page 3-----------------------

                                                                                                                            

he had built the house, and he subsequently paid off that loan around 2007.  A 1998  



                                                                                                                             

appraisal  valued  the  property  at  $190,800.                        Toland  did  not  contribute  to  the  loan  



                                                                                                                               

payments nor was she listed on utility accounts, which Hatten paid.   At no time did  



                                                                                                                     

Hatten grant title to Toland.  Hatten has two adult children from his previous marriage,  



                                                                                                                               

a daughter and a son.  Although Hatten's daughter had for some time lived outside his  



                                                                                                                        

home, it remained a primary residence for his son, who is physically disabled.  



                                                                                                                       

                    Toland gave Hatten a will kit five years before his death.  Hatten suffered  



                                                                                                                        

fromchronicobstructivepulmonary disorder, and when hebattled pneumoniain January  



                                                                                                                           

2013 his friends and family asked how he planned to take care of his estate and urged  



                                                                                                                               

him to create a will.   In February Hatten named Toland the sole beneficiary of his  



                                                                                                                      

$194,000 Edward Jones IRA account.  The beneficiary designation form lists Toland's  



                                                                                                                            

relationship to Hatten as "Domestic Partner."  A month later Hatten suffered a heart  



                                                    

attack and died.  He left no will.  



          B.        Proceedings  



                                                                                                                                

                    Toland filed a claim against the estate in September 2013, seeking, in  



                                                                                                                                    

relevant part, a "fair division of the value of the parties' [domestic partnership] assets . . .  



                                                                                                                              

taking into account [Hatten's] promise to take care of [her] for the rest of her life."  The  



                                                                                                                       

estate opposed her claim, requesting that it be denied in full and that Toland be required  



                                               

to vacate Hatten's residence.  



                                                                                                                      

                    A probate master conducted an evidentiary hearing to consider Toland's  



                                                                                                                                 

claims.  The parties and witnesses offered conflicting testimony regarding the nature of  



                                                                                                                              

Toland  and  Hatten's  relationship.                      Some  of  the  estate's  witnesses  described  the  



                                                                                                                           

relationship as one of convenience, not that of two romantic or life partners.   They  



                                                                                                                               

pointed to the fact that Hatten never claimed Toland as a dependent on his tax returns but  



                                                                                                                              

once actually claimed her as a housekeeper.  But Toland and others close to the pair  



                                                                                                                                  

described their relationship as that of a loving husband and wife, less the paperwork.  



                                                               -3-                                                         7359
  


----------------------- Page 4-----------------------

                                                                                                                                      

                    Testimony aboutHatten's intentionsregarding his property alsoconflicted.  



                                                                                                                               

The estate's witnesses testified that Hatten was private about his financial affairs and  



                                                                                                                            

never intended to give Toland the house.  According to Hatten's daughter, her father  



                                                                                                                            

said,  "[h]is assets and his money and his things were none of our business," and when  



                                                                                                                            

she asked if he had something in order Hatten replied, "don't worry, you and [your  



                                                                             

brother] will be fine, otherwise, it's none of your business."  



                                                                                                                       

                    Toland and other witnesses painted a very different picture of Hatten's  



                   

intentions.  Toland testified that Hatten told her "several times" he was going to make  



                                                                                                                               

a will and "he wanted [her] to have [the] house" so that she could sell it, because it was  



                                                                                                               

too expensive and difficult for her to manage its upkeep alone.  Toland stated that she  



                                                                                                                                  

had given Hatten a will kit, but she described him as a "procrastinator" when it came to  



                                                                                                                                  

paperwork.  Toland had been unaware that Hatten had made her the sole beneficiary of  



                                                                                                                                

his IRA; she testified that "[a]t one point, he told me that I was going to get 52% and his  



                                                                                                             

three grandsons were going to get the [rest] . . . . [A]ll of a sudden, he - he decided to  



                                                                                                                         

change it. . . . I didn't even know about it until after the fact."  According to Toland,  



                                                                                                                              

when she saw the paperwork and asked Hatten about it, he explained that his recent bout  



                                                                                                                          

with pneumonia "opened his eyes that it was time for him to start taking care of things"  



                                                               

and he was "going to get a will going."  



                                                                          

                    Hatten's cousin recalled speaking with Hatten about a will "three or four  



                                                                                                                          

times" as his health declined, and he had said, "I promise you that [Toland] will always  



                                                                                                                         

have this roof over her head.  This is her home."  Another of Hatten's cousins testified  



                                                                                                                                  

Hatten said that Toland was "going to be taken care of" and that he had "been seeing to  



                                                                                                                                   

it a little bit at a time."   Finally, a neighbor who worked in real estate testified to a  



                                                                                                                                

discussion she had with Hatten a month before he died, in which he both asked her for  



                                                                                                                                  

help with the IRA account and inquired about what he needed to do to get the house in  



                          

Toland's name.  



                                                                -4-                                                         7359
  


----------------------- Page 5-----------------------

                                                                                                                          

                    The probate master found that since "at least 1994," Hatten and Toland  



                                                                                                                                

"lived  together as a committed couple in [Hatten's] home."   However, beyond the  



                                                                                                                     

parties' general statements the master concluded that, "little is known about [Hatten's]  



                                                                                                                            

specific intentions."             The master  found that,  although  Hatten  made inquiries about  



                                                                                                                                

transferring title of his house to Toland and received a will kit five years prior to his  



                                                                                                                            

death, he "took no additional steps to transfer title, write down his intentions, or create  



                                                                                                                                   

a trust or will."  Instead, approximately a month before his death, he named Toland a  



                                                                                                      

"100% beneficiary of his $194,000 Edward Jones IRA account."  



                                                                                                                               

                    The  master  concluded  that  Alaska's  intestate  succession  laws  do  not  



                                                                                                                          

contemplate the unmarried domestic partner.  The master noted that the cases Toland  



                                                                                                                               

cited  "authorize  courts  to  divide  unmarried  cohabitants'  property  according  to  the  



                                                                                                                       

parties' intentions" upon separation but concluded that "[n]one provide direct authority  



                                                                                                                  

regarding  property  division  after  death."                         The  master  concluded  the  "subjective  



                                                                                                                          

intentions" of a decedent with respect to a cohabitant are subordinate to Alaska's statutes  



                                                 

governing intestate succession.  



                                                                                                             

                    The master also suspected that Alaska's statute of frauds does not permit  



                                                                                                                                

enforcement of an oral lifetime support contract against an estate, but assumed to the  



                                                                                                                        

contrary.        The  master  stated  that  "Hatten's  intentions,  or  the  scope  of  the  parties'  



                                                                                                                           

contract, are hard to discern." The master noted that "Hatten's actions speak more loudly  



                                                                                                                        

than his words."  The master found it significant that "for more than 20 years, [Hatten]  



                                                                                                                                 

chose not to marry, create a will, establish a joint bank account, or put his house in  



                                                                                                                            

[Toland's] name"  but that when his health declined, he took affirmative steps to name  



                                                                                                                        

Toland as his IRA beneficiary. Hatten's disabled son had lived in the house for decades;  



                                                                                                                            

absent any evidence that Hatten wished to disinherit his children, this tipped the scales  



                                                                                                                          

in  favor  of  the  inference  that  his  not  creating  a  will  was  intentional.                               The  master  



                                                                -5-                                                         7359
  


----------------------- Page 6-----------------------

 concluded that Hatten intended to provide for Toland through the IRA and to leave the                                                                                                                                                                                                                                                                                                  



house for his children.                                                                                 



                                                             The superior court adopted the master's findings and conclusions of law                                                                                                                                                                                                                                                 



 and denied Toland's claim against the estate.  Toland objected to the report and order.   



 The court considered her objections in another written order and again concurred with                                                                                                                                                                                                                                                                                           



the master's report. The court highlighted the master's finding that although Hatten was                                                                                                                                                                                                                                                                                            



 given every opportunity to leave Toland the house by will or deed he chose not to do so,                                                                                                                                                                                                                                                                                                



 opting to instead name her as the beneficiary of his IRA account.                                                                                                                                                                                                                                       



                                                             Toland appeals.                                                          She argues that the court erred by denying her contract                                                                                                                                                                    



 claim, that she and Hatten formed an enforceable lifetime support contract, and that the                                                                                                                                                                                                                                                                                               



 court's findings about Hatten's intent were clearly erroneous.                                                                                                                                                                                                                        She also asserts that the                                                                       



 superior court erred by not recognizing her property rights arising from her domestic                                                                                                                                                                                                                                                                      



partnership with Hatten.                                                                                         



 III.                          STANDARD OF REVIEW                                                                 



                                                            We review the superior court's findings of fact for clear error, and we will                                                                                                                                                                                                                                            



reject a factual finding "only when we are left with a definite and firm conviction based                                                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                     1   "[W]hen a trial court's decision of  

 on the entire record that a mistake has been made."                                                                                                                                                                                                                                                                                                                                        



 a factual issue depends largely on conflicting oral testimony, the trial court's competence  

                                                                                                                                                                                                                                                                                                                                                



to judge credibility of witnesses provides even a stronger basis for deference by the  

                                                                                                                                                                                                                                                                                                                                                                                      

reviewing court."2  

                                                                                      



                               1                            Dan v. Dan                                             , 288 P.3d 480, 482 (Alaska 2012) (quoting                                                                                                                                                               In re Protective           



Proceeding of W.A.                                                                       , 193 P.3d 743, 748 (Alaska 2008)).                                                                                             



                              2                             Dixon v. Dixon, 407 P.3d 453, 456-57 (Alaska 2017) (alteration in original)  

                                                                                                                                                                                                                                                                                                                                                               

 (quoting Vezey v. Green, 35 P.3d 14, 20 (Alaska 2001)).  

                                                                                                                                                                                                                             



                                                                                                                                                                                             -6-                                                                                                                                                                                7359
  


----------------------- Page 7-----------------------

                       "[W]e use our independent judgment for legal issues and review de novo                                             



                                                             3  

the court's interpretation of the law."                                                                                            

                                                                We apply our independent judgment to questions  



                                            4  

                                               

                     

of statutory interpretation. 



IV.	       DISCUSSION  



                                                                                                                                                    

           A.	         The Superior Court's Findings Of Fact Regarding Toland's Contract  

                                                                 

                       Claim Are Not Clearly Erroneous.  



                                                                                                                                   

                       Toland contends that the testimony and record demonstrate the existence  



                                                                                                  

of a lifetime support contract between herself and Hatten and that under the contract's  



                                                                                                                                             

terms upon his death he intended for her to keep the house in addition to the IRA she  

               5     The master found that "Hatten's intentions, or the scope of the parties'  

received.                                                                                                                            



contract, are hard to discern." The master ultimately concluded that the evidence did not  

                                                                                                                                             



show Hatten ever specifically promised or intended to give Toland the house as a means  

                                                                                                                                       



of fulfilling the purported support contract.  The superior court adopted these findings  

                                                                                                   



in a May 2016 order.  Toland asserts that the findings underlying the court's order are  

                                                                                                                                             



clearly erroneous, specifically that Hatten:  (1) was guarded about his financial affairs;  

                                                                                                                                       



           3          Riddell  v.  Edwards,  76  P.3d  847,  852  (Alaska  2003).   



           4          N.  Slope  Borough  v.  Brower,  215  P.3d  308,  311  (Alaska  2009).  



           5           Toland  argues  that  the  master  erred  by  surmising  that  Alaska's  case  law  and  



statute  of  frauds  preclude  enforcement of  a  lifetime  support contract  against  an  estate.   

But  the  master  "assum[ed]  for  the  sake  of  argument"  that  Toland's  contract  claim against  

Hatten's  estate  could  be  considered  and  proceeded  accordingly.   Finding  no  error  with  

the  court's  interpretation  of  the  alleged  contract  between  Toland  and  Hatten,  we  decline  

to  address  her  arguments regarding  enforceability  of lifetime support  contracts in  Alaska.   

And  to  the  extent  Toland  argues  Hatten  orally  promised  or  assured  her  after  January   1,  

 1997   that   he   would  give   her   the   house   or   other   property   upon   his   death,   we   note  

AS  13.12.514(a)  renders  such  oral  agreements  unenforceable.   See  Cragle  v.  Gray,  206  

P         

   .3d 446, 451 (Alaska 2009) (holding under AS 13.12.514(a) that "oral succession  

                                                                                                                                

contracts that are not reduced to writing are unenforceable").  

                                                                           



                                                                       -7-	                                                              7359
  


----------------------- Page 8-----------------------

                                                                                                                        

(2) made a variety of different statements to different people; (3) managed his finances  



                                                                                                                                  

competently; (4) actively chose not to make a will; and (5) knew that the house was in  



                                                                                                                                      

his name alone but took no affirmative steps to ensure Toland received it upon his death.  



                                                                                                               

                    Weconcludethat neither thecourt's findingsnor itsultimatedeterminations  



                                                                                                                                

are clearly erroneous.  Evidence in the record about Hatten's statements regarding his  



                                                                                                                        

financial affairs suggests inconsistencies and that he was vague and guarded.  Hatten's  



                                                                                                                                

daughter testified that he stated his financial affairs were "none of [her] business" but  



                                                                                                                           

that she and her brother would be fine. Hatten's sister testified that she had asked Hatten  



                                                                                                                                

several times if he had a will, and he assured her, "[Y]es, don't worry about it, I've got  



                                                                                                                                

it all taken care of."   According to her, Hatten never indicated that he intended for  



                                                                                                                               

Toland to keep the house. Hatten's son testified that his father "said he was going to end  



                                      

up selling [the house]."  



                                                                                                                    

                    Witnesses friendly to Toland testified that Hatten intended to financially  



                                                                                                                               

provide for her, but none could specify what he ultimately decided.  One testified that  



                                                                                                                               

Hatten said Toland would have "this" particular roof over her head; another stated that  



                                                                                                                                

Hatten had simply said he was taking care of things "a little bit at a time," and the  



                                                                                                                               

witness "assumed" that Hatten had made a will; and a third testified that Hatten had  



                                                                                                                       

inquired both about the IRA and "what he would have to do" to get the house in Toland's  



                                                                                                                                

name after he died.   Even Toland's testimony suggested Hatten's guardedness; for  



                                                                                                                          

example, he changed his IRA beneficiary without her knowledge.  The court's finding  



                                                                                                                                      

that Hatten was "somewhat private" about his financial affairs is not clearly erroneous.  



                                                                                                                          

                    Nor is the finding that Hatten managed his finances competently clearly  



                                                                                                        

erroneous.  The record shows he cared financially for his property, named Toland as a  



                                                                                                                         

beneficiary  on  his  IRA,  and  maintained  several  bank  accounts.                                    Although  Toland  



                                                                                                                          

described  Hatten  as  a  "procrastinator,"  a  finding  that  he  managed  his  affairs  



                                                                                         

"competently" and intentionally is not clearly erroneous.  



                                                                -8-                                                         7359
  


----------------------- Page 9-----------------------

                                                                                                                               

                    The court's inference that Hatten actively chose not to make a will is also  



                                                                                                                                

grounded in the evidence.  Hatten was aware of the need to create a will.  He knew his  



                                                                                                                             

health was declining. Friends and family testified that they had regularly raised the issue  



                                                                                                                               

of creating a will with Hatten; Toland went so far as providing him a will kit. Hatten was  



                                                                                                                              

as capable of creating a will as he was of naming Toland the beneficiary on his IRA  



                                                                                  

account; he chose to do the latter but not the former.  



                                                                                                                                  

                    We finally note that according to Toland's account of her agreement to  



                                                                                                                               

move to Kasilof, Hatten did not specifically promise to give her title to his house at that  



                                                                                                                         

time.  Despite evidence that Toland worked throughout her relationship with Hatten,  



                                                                                                                        

Toland testified that Hatten had promised "he would take care of [her]" and that she  



                                                                                                                               

"wouldn't have to work." Although Toland testified that Hatten at one point told her that  



                                                                                                                                

he wanted her to have his house, she also claimed that he had said she should sell the  



                                                                                                                             

house because she would not be able to afford the expensive upkeep it required.  Even  



                                                                                                                              

in Toland's testimony, Hatten was not promising her a specific place to live, but an asset  



                                                                                                                       

with which she could support herself. It was not error for the superior court to conclude  



                                                                                                                         

that, assuming the existence of an enforceable lifetime support contract, Hatten fulfilled  



                                                                                                                             

the contract by giving Toland his IRA account - roughly equivalent to the 1998 value  



                         

of his property.  



                                                                                                                         

                    In sum, Toland did not show that the scope of the alleged lifetime support  



                                                                                                                               

contract included giving her the house.  Nor did Toland show that Hatten failed to live  



                                                                                                                                

up to his alleged promise to care for her - he left her a substantial sum by naming her  



                                                                                                              

the sole beneficiary of his IRA.  We conclude that the superior court's findings about  



                                                                                                        

Hatten's intent and the scope of the alleged contract are not clearly erroneous.  



                                                                -9-                                                         7359
  


----------------------- Page 10-----------------------

             B.	          The Superior Court Did Not Err By Declining To Apply A Domestic   

                          Partnership Property Analysis To Divide Hatten's Property.                                                



                          Toland also argues that the superior court erred by not applying a domestic                                                 



                                                          6  

partnership property analysis                                                                                                                           

                                                              and distributing Hatten's property based on Hatten's  



                                                                                                                                                      

alleged  intent.                  We  conclude  that  the  court  was  correct  to  distinguish  domestic  



                                                                                                                                                                       7  

                                                                                                                                                                          

partnership property cases on the basis that those cases involved inter vivos separations. 



                                                                                                                                 

We take this opportunity to clarify the relevant legal framework.  



                                                                                                                                                                   

                          Alaska has distinct property division schemes that apply depending on  



                                                                                                                                                             

when a relationship ends.  If a marriage ends during the lifetimes of the spouses, courts  



                                                                                                                                                       

apply  statutory  marital  property  principles  and  equitably  distribute  the  spouses'  



                  8  

                                                                                                                                                            

property.            During the marriage, spouses do not gain a present property interest in marital  



                                                                                                                                                             9 

                                                                                                                                          

property simply by virtue of their relationship; that interest vests only at divorce.   If a  



                                                                                                                                                           

domestic partnership ends during the lifetimes of thepartners, nospecificstatutes control  



                                                                                                                                                                  

thedistribution of partnership property. This court insteadhas formulated acommon law  



             6            See Tomal v. Anderson, 426 P.3d 915, 922-24 (Alaska 2018) (setting out                                                   



legal standards for domestic partnership property distribution).                                  



             7            See, e.g., Tolan v. Kimball, 33 P.3d 1152, 1155 (Alaska 2001) (holding in  

                                                                                                                                                                     

dispute between unmarried cohabitants that "intent of the parties should control the  

                                                                                                                                                                  

distribution of property accumulated during the course of cohabitation").  

                                                                                                                  



             8            Burts v. Burts, 266 P.3d 337, 342 (Alaska 2011) ("Alaska uses a statutory  

                                                                                                                                                        

scheme of equitable division codified in AS 25.24.160(a)(4).").  

                                                                                       



             9            See Kessler v. Kessler, 411 P.3d 616, 619 (Alaska 2018) ("The distinction  

                                                                                                                                                     

between marital property and separate property is simply a way of categorizing property  

                                                                                                                                                        

for  purposes  of  division  upon  divorce,  not  a  statement  of  property  rights  during  

                                                                                                                                             

marriage.");  Gottstein  v.  Kraft,  274  P.3d  469,  476  n.26  (Alaska  2012)  ("[M]arital  

                                                                                                                                                   

property exists only within the equitable distribution context of a divorce action.").  

                                                                                                                                                



                                                                                -10-	                                                                          7359
  


----------------------- Page 11-----------------------

                                                                                                                                                                          10  

analysis to distribute the partnership property according to the partners' shared intent.                                                                                      



                                                                                                                                                                       

This partnership property interest, like a marital property interest, vests only at the  



                                                            11  

                                     

dissolution of the partnership. 



                                                                                                                                                                    

                           If a relationship ends at the death of one member, Alaska's probate code  



                                                                                                                                                                          12  

                                                                                                                                                                               

comprehensively governs the rights of both surviving spouses and domestic partners. 

A  surviving  spouse  takes  all,  or  most,  of  a  deceased  spouse's  intestate  estate;13   a  

                                                                                                                                                                           



surviving spouse who is dissatisfied with a deceased spouse's will can choose to receive  

                                                                                                                                                                

a statutory elective share of the deceased's augmented estate.14                                                                 A surviving domestic  

                                                                                                                                                           



partner, in contrast, inherits none of a deceased partner's estate under the probate code.  

                                                                                                                                                                               



And, unlike in the case of an inter vivos separation, the probate code has provisions  

                                                                                                                                                        



disposing  of  all  of  a  deceased  partner's  estate,  whether  the  partner  died  testate  or  

                                                                                                                                                                         



intestate.  There is no "gap" to fill with a common law scheme that would distribute the  

                                                                                                                                                                        



deceased partner's property according to the partners' shared intent.  If the deceased  

                                                                                                                                                           



partner did not provide for the surviving partner through a will, the surviving partner will  

                                                                                                                                                                      



not inherit the deceased's property as a testamentary matter.  

                                                                                                           



                           Both  surviving  spouses  and  domestic  partners  can  contest  whether  

                                                                                                                                                            



particular property is properly included in the deceased's estate.  The probate code does  

                                                                                                                                                                     



not  address  this  issue,  and  so  we  apply  equitable  and  property  law  principles  to  

                                                                                                                                                                         



              10           See Tomal            , 426 P.3d at 922-23.         



              11           Cf. Gottstein            , 274 P.3d at 476 n.26.             



              12           See  AS 13.06.005-.16.705.   



              13           See  AS 13.12.102.   



              14           See  AS 13.12.202.   



                                                                                   -11-                                                                            7359
  


----------------------- Page 12-----------------------

                                                                                                          15  

 determine   ownership  in   the   event   of   a   dispute.                                                     We   have   explicitly   rejected   the  



 argument that "divorce-like marital property concepts and equitable distribution should                                                                                  



                                                                                                                                                                                    16  

 applyin probateproceedings"to determineasurviving spouse'sownership ofproperty.                                                                                                         



                                                                                                                                                                  

 Instead, for property that is titled in the name of one spouse alone, we apply a rebuttable  

                                      17   The title presumption can be overcome by evidence of misconduct  

                                                                                                                                                               

title presumption. 

justifying  the imposition of a constructive trust 18   or by evidence that the party not  

                                                                                                                                                                                

 appearing on the title actually acquired an interest in the property.19                                                                         In the case of real  

                                                                                                                                                                                

property, "th[e] presumption may not be overcome by mere surmise and conjecture."20  

                                                                                                                                                           



                             Applying  this  framework  disposes  of  Toland's  domestic  partnership  

                                                                                                                                                              



 arguments. Because Toland and Hatten's relationship ended when Hatten died, Alaska's  

                                                                                                                                                                      



probatecode, not acommon lawdomesticpartnershipproperty divisionscheme, controls  

                                                                                                                                                                       



               15            See Pestrikoff v. Hoff                        , 278 P.3d 281, 286 (Alaska 2012) (applying title                                                   



presumption to determine ownership of property alleged to be included in deceased                                                                                   

wife's estate).   



               16           Id.  

                                    



               17            See id.  

                                      



               18            See id.  

                                      



               19            See, e.g., Sugg v. Morris, 392 P.2d 313, 316 (Alaska 1964) (holding that  

                                                                                                                                                            

plaintiff failed to demonstrate her equitable interest in real property because she did not  

                                                                                                                                                                                 

prove how much she had contributed toward down payment and mortgage payments).  

                                                                                                                                                                



               20            See Pestrikoff, 278 P.3d at 284  (quoting 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)).  

                                       



                                                                                       -12-                                                                                  7359
  


----------------------- Page 13-----------------------

the distribution of Hatten's estate. Domestic partners are not among the heirs who inherit                                                         



                                                                  21  

property from an intestate decedent.                                                                                   

                                                                       Toland's claim thus must fail.  



                                                                                                                                             

                        Toland  argues  that  this  court  should  follow  the  Washington  Supreme  

                                                               22  and apply the same property division scheme to all  

                                                                                                                                                          

                                                   

Court's decision in Olver v. Fowler 



domestic partnership separations regardless of when they occur.   She contends that,  

                                                                                                                                                      



consistent with Olver, this court should hold that domestic partnership property interests  

                                                                                                                                               



vest when the partners have the requisite intent. But Toland ignores a key distinguishing  

                                                                                                                                     



feature - Washington is a community property state, and spouses acquire "a present ,  

                                                                                                                                                

undivided  interest  in  the  couple's  community  property."23                                                      Domestic  partners  in  

                                                                                                                                                         

Washington acquire a similar interest "by analogy."24                                               It follows then that, at the death  

                                                                                                                                                    



of one partner in Washington, the surviving partner is entitled to retain the property  

                                                                                                                                              



interests properly acquired during the parties' lifetimes - even if that property is titled  

                                                                                                                                                     



in the deceased partner's name alone.  In Alaska spouses and domestic partners do not  

                                                                                                                                                        



gain a present property interest in separately titled property merely by virtue of their  

                                                                                                                                                     

                        25                                                                                                26   If that separation  

                             Their interests vest only at an inter vivos separation.                                                        

relationships.                                                                                          



never occurs during the spouses' or partners' lifetimes, the property interest never vests.  

                                                                                                                                                    



            21          See  AS 13.12.102-.103.   



            22           168 P.3d 348, 356 (Wash. 2007) (en banc) (holding that jointly acquired     



property of deceased domestic partners should be divided according to their equitable  

                                                                                                                                             

interests in property).  

                      



            23          Id. (emphasis added).  "Community property" includes property acquired  

                                                                                                                                               

during the parties' relationship with community funds but titled in the name of only one  

                                                                                                                                                        

spouse.  See id.  

                        



            24          Id.  



            25          See Gottstein v. Kraft, 274 P.3d 469, 476 n.26 (Alaska 2012).  

                                                                                                                                           



            26          See id.; Kessler v. Kessler, 411 P.3d 616, 619 (Alaska 2018).  

                                                                                                                            



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----------------------- Page 14-----------------------

                           Toland also argues that this court should apply, "by analogy," Alaska's                                                           



                                                                                                                                                                           27  

statutes governing the ownership of jointly acquired real property by married couples.                                                                                           



Even if we accept that a statute governing married couples should also apply to domestic  

                                                                                                                                                             



partners, the statutes Toland cites are inapposite. They apply only to jointly acquired real  

                                                                                                                                                                        



property, and Toland has acknowledged that Hatten independently acquired and paid for  

                                                                                                                                                                         



his  house  and  the  land  where  it  is  located.                                               And  Toland  has  failed  to  rebut  the  

                                                                                                                                                                        



presumption that Hatten is the owner of his separately titled real property.  She has not  

                                                                                                                                                                        



proven that she acquired any interest in that property by contract, as described above,  

                                                                                                                                                                 



and she has not alleged that Hatten engaged in any misconduct justifying imposition of  

                                                                                                                                                                           



a constructive trust on his property.  

                                                                          



V.            CONCLUSION  



                           The superior court's decision is AFFIRMED.  

                                                                                                                         



              27           See  Gottstein,  274  P.3d  at  476  n.26.  



                                                                                   -14-                                                                             7359  

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