       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Estate of:           )
                                          )
MICHAEL A. PETELLE,                       )    No. 77556-1-1
                                          )
                     Deceased.            )    DIVISION ONE
                                          )
GLORIA PETELLE,                           )
                                          )
                     Appellant,           )
                                          )
              v.                          )    PUBLISHED OPINION
                                          )
MICHELLE ERSFELD PETELLE,                 )    FILED: May 6, 2019
                                          )
                     Respondent.          )
                                          )

       SMITH, J. —After a six-year marriage, Michael PeteIle filed a petition to

dissolve his marriage to Michelle Ersfeld PeteIle.1 The parties executed a

Separation Contract and CR2A Agreement(Separation Contract) that divided

their assets into separate property and was a "final settlement of all their marital

and property rights and obligations." Michael died intestate with no children

before a dissolution decree was entered. Gloria PeteIle, Michael's mother and

heir, appeals the trial court's denial of her motion to terminate Michelle's right to

intestate succession. We hold that the right to intestate succession is a marital


      1 Because all the parties have the same last name, we refer to each
person by his or her first name.
No. 77556-1-1/2

right that, although derived from statute, arises because of a person's marital

status. By agreeing to a final settlement of all marital rights, Michelle waived that

right by signing the Separation Contract. Therefore, we reverse and remand with

instructions for the trial court to grant Gloria's motion to terminate Michelle's right

to intestate succession. We also deny Michelle's request for attorney fees on

appeal and at the trial court.

                                       FACTS

       Michael and Michelle married on May 20, 2011. On January 27, 2017,

Michael filed a petition for dissolution of their marriage. On February 14, 2017,

Michael and Michelle executed the Separation Contract that divided their

property and debts. Michael died on May 1, 2017, before a final decree of

dissolution was entered. He did not have a will, and he had no children.

       Michelle submitted a petition for letters of administration, appointment of

an administrator, an order of solvency, and nonintervention powers on May 10,

2017. Her petition did not disclose the existence of the dissolution action or the

Separation Contract. Furthermore, she did not give notice to any of Michael's

heirs of her intent to petition for nonintervention powers, as required by

RCW 11.68.041. Gloria contested Michelle's nonintervention powers. The trial

court revoked Michelle's nonintervention powers and required her to post a

$100,000 bond but allowed Michelle to continue as Michael's personal

representative. It also awarded attorney fees to Gloria.

       Gloria then petitioned the court on September 27, 2017, for an order

terminating Michelle's right to intestate succession. The trial court denied


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No. 77556-1-1/3

Gloria's motion but reserved ruling on Michelle's motion for attorney fees. Gloria

appeals.

                 RIGHT TO INHERIT AS A "SURVIVING SPOUSE"

       Gloria argues that Michelle and Michael's marriage was defunct and,

therefore, Michelle is not entitled to inherit as a "surviving spouse" because her

marriage to Michael was "terminated" under RCW 11.02.005(17). We disagree.

       The meaning of a statute is a question of law that we review de novo.

Durant v. State Farm Mut. Auto. Ins. Co., 191 Wn.2d 1, 8, 419 P.3d 400 (2018).

Our fundamental objective in determining what a statute means is to ascertain

and carry out the legislature's intent. Durant, 191 Wn.2d at 8. "If the statute's

meaning is plain on its face, then courts must give effect to its plain meaning as

an expression of what the legislature intended." Durant, 191 Wn.2d at 8. The

court may use a dictionary to discern the plain meaning of an undefined statutory

term. Nissen v. Pierce County, 183 Wn.2d 863, 881, 357 P.3d 45 (2015). If,

after consulting a dictionary, the statute is susceptible to more than one

reasonable meaning, the statute is ambiguous and it is appropriate to use other

statutory construction aids and examine the legislative history. Wrigley v. State,

5 Wn. App. 2d 909, 924-25, 428 P.3d 1279 (2018). "The court has frequently

looked to final bill reports as part of an inquiry into legislative history." State v.

Bash, 130 Wn.2d 594, 601, 925 P.2d 978 (1996).

       RCW 11.04.015(1)(c) states that a "surviving spouse" shall receive

"[t]here-quarters of the net separate estate if there is no surviving issue, but the




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No. 77556-1-1/4

intestate is survived by one or more of his or her parents." RCW 11.02.005(17)

describes when an individual does not qualify as a "surviving spouse":

       "Surviving spouse" or "surviving domestic partner" does not include
       an individual whose marriage to or state registered domestic
       partnership with the decedent has been terminated, dissolved, or
       invalidated . . . . A decree of separation that does not terminate the
       status of spouses or domestic partners is not a dissolution or
       invalidation for purposes of this subsection.

(Emphasis added.) "Terminated" is not defined in the statute, but the dictionary

defines "terminate" as "to bring to an ending or cessation in time, sequence, or

continuity: CLOSE. . . to form the ending or conclusion of. . . to end formally and

definitely (as a pact, agreement, contract)." WEBSTER'S THIRD NEW

INTERNATIONAL DICTIONARY 2359 (2002). Using this definition of "terminated," the

term is susceptible to two or more meanings because it is not clear what action is

required to "terminate" a marriage or domestic partnership. Therefore, it is

necessary to consult the legislative history of the statute to ascertain the

legislature's intent.

       RCW 11.02.005(17) was revised in 2008 as part of a broader bill

expanding domestic rights and responsibilities of all couples recognized as

domestic partners under Washington's State Registered Domestic Partnerships

Act, chapter 26.60 RCW. H.B. 3104, 60th Leg., Reg. Sess.(Wash. 2008). The

statute's references to domestic partners and domestic partnerships and the

word "terminated" were added as part of this revision. Based on the final bill

report, "terminated" refers to a process for ending a domestic partnership with the

Secretary of State. See FINAL B. REP. ON SECOND SUBSTITUTE H.B. 3104, 60th

Leg., Reg. Sess.(Wash. 2008). Contrary to Gloria's contention, the legislature

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No. 77556-1-1/5

did not add "terminated" to describe a marriage that is defunct. Because

Michelle was not in a domestic partnership with Michael that was terminated by

the Secretary of State, she is a surviving spouse under the statute and is entitled

to inherit 75 percent of his separate property, absent a waiver of that right.

           WAIVER OF MARITAL RIGHT TO INTESTATE SUCCESSION

         Gloria next argues that Michelle waived her right to inherit Michael's

property as a "surviving spouse" by entering into the Separation Contract. We

agree.

      "When the parties to a separation agreement dispute its meaning, the

court must ascertain and effectuate their intent at the time they formed the

agreement." Boisen v. Burgess, 87 Wn. App. 912, 920, 943 P.2d 682 (1997).

"The intent of the parties is determined by examining their objective

manifestations, including both the written agreement and the context within which

it was executed." Boisen, 87 Wn. App. at 920. "If the agreement has only one

reasonable meaning when viewed in context, that meaning necessarily reflects

the parties' intent." Boisen, 87 Wn. App. at 920. If the agreement has more than

one reasonable meaning, a question of fact is presented and this court reviews

the trial court's determination for substantial evidence. Boisen, 87 Wn. App. at

920-21. But where there is no reliance on extrinsic evidence, interpretation of a

contract is a question of law we review de novo. State v. R.J. Reynolds Tobacco

     151 Wn. App. 775, 783, 211 P.3d 448 (2009). "We attempt to determine

the parties' intent by focusing on the objective manifestations of the agreement,




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No. 77556-1-1/6

rather than on the unexpressed subjective intent of the parties." Hearst

Commc'ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 503, 115 P.3d 262(2005).

       "'[W]aiver is the intentional and voluntary relinquishment of a known right,

or such conduct as warrants an inference of the relinquishment of such right." In

re Estate of Lindsay, 91 Wn. App. 944, 950, 957 P.2d 818(1998)(alteration in

original)(quoting Peste v. Peste, 1 Wn. App. 19, 24, 459 P.2d 70 (1969)). It can

be an express agreement or be inferred from the circumstances. Lindsay, 91

Wn. App. at 950-51. Waiver is "'a voluntary act which implies a choice, by the

party, to dispense with something of value or to forego [sic] some advantage."

Lindsay, 91 Wn. App. at 951 (quoting Peste, 1 Wn. App. at 24).

       Under Washington law, a surviving spouse has a right to inherit from his or

her deceased spouse's estate. RCW 11.04.015(1). This statutory right to

intestate succession turns on a person's marital status and is therefore a marital

right. See 19 SCOTT J. HORENSTEIN, WASHINGTON PRACTICE: FAMILY & COMMUNITY

PROPERTY LAW § 5:3, at 125 (2d ed. 2015)("Marital rights. . . include. . .

inheritance rights.").

       Here, the Separation Contract states that "the parties hereby stipulate and

agree to make a complete and final settlement of all their marital and property

rights and obligations on the following terms and conditions." (Emphasis added.)

This language is, arguably, sufficient to constitute waiver of all marital and

property rights flowing from the marital relationship, including the right to intestate

succession.




                                          6
No. 77556-1-1/7

       While Michelle concedes that a party can waive his or her right to intestate

succession, she argues that such a waiver did not occur here. She contends that

in order to constitute a waiver of her right to intestate succession, the Separation

Contract must clearly state that she waived that specific right and that a general

waiver of all marital rights is insufficient. Even assuming her argument has merit,

we hold that additional language in the Separation Contract supports a holding

that Michelle impliedly waived her right to intestate succession.

       Washington courts have determined that a spouse's right to a homestead,

another marital inheritance right, can be impliedly waived in a settlement

agreement of marital and property rights in two previous cases: In re Estate of

Brown, 28 Wn.2d 436,439, 183 P.2d 768 (1947), and Lindsay. Following the

analysis in both of these cases, Michelle impliedly waived her right to intestate

succession by entering into the Separation Contract.

       In Brown, the Supreme Court considered whether Florence Turner was

entitled to an award of property in lieu of homestead from Louis Brown's estate.

At the time of Brown's death, the parties were separated, their divorce was

pending, and Brown had executed a new will that omitted Turner. Brown, 28

Wn.2d at 437, 439. The parties also entered into a settlement agreement that

stated:

             "(4). In the event of the granting of a divorce in the above
      entitled action, this property settlement shall be a full and complete
      settlement of all of the property rights of the parties hereto, and the
      property received by the first party hereunder shall thereupon
      become and/or remain in his separate property, free and clear of all
      claims whatsoever on the part of the second party, and the property
      received by the party of the second part shall thereupon become
      her separate property, free and clear of any claims whatsoever on

                                         7
No. 77556-1-1/8

       the part of the first party. It is hereby agreed by the parties hereto
       that this property settlement shall be final and conclusive between
       the parties hereto, regardless of whether or not either party hereto
       may die before the Interlocutory Decree of Divorce shall become
       final. . . .
              It



             "This agreement shall be binding on each of the parties
       hereto, their heirs and assigns forever."

Brown, 28 Wn.2d at 438(emphasis added). The Supreme Court held that Turner

waived all rights to a homestead by signing the agreement. Brown, 28 Wn.2d at

440. It determined that if the parties intended the settlement agreement to be

effective even if one of them died, "then the property secured by each became

and remained separate property, free and clear of all claims—including right of

homestead—on the part of the other party." Brown, 28 Wn.2d at 440(emphasis

added). Considering the language of the agreement and the circumstances

surrounding its execution, the court held that it was "clear" that Turner and Brown

contemplated the possibility of death and "meant to waive any rights which might

accrue upon death, one of which rights would be the homestead right." Brown,

28 Wn.2d at 440(emphasis added). This was clear because the language of the

agreement indicates that "the property settlement shall be final and conclusive

between the parties, regardless of whether either party died prior to the time the

interlocutory decree of divorce became final." Brown, 28 Wn.2d at 440. That,

combined with the release of claims on the other's separate property, and the

recitation that the agreement was binding on the parties, heirs, and assigns,

clearly evidenced "that the division of the property should stand and that each

should dispose of that separate property as if either were unmarried." Brown, 28

Wn.2d at 440.

                                         8
No. 77556-1-1/9

       Here, similar to the agreement in Brown, the Separation Contract also

states that it is "a complete and final settlement of all [of Michelle and Michael's]

marital and property rights and obligations." Furthermore, it is effective even

upon the death of either party. Therefore, as in Brown, the Separation Contract

evidences Michael and Michelle's intent that "the property secured by each

became and remained separate property, free and clear of all claims. . . on the

part of the other party," including any right to intestate succession. Brown, 28

Wn.2d at 440(emphasis added).

       More recently, in Lindsay, Division III of this court also concluded that a

separation agreement constituted an implied waiver of a spouse's right to a

homestead. In that case, Murray and Cathy Lindsay signed a separation

agreement dividing their real and personal property on October 1, 1991, after an

almost eight-year marriage. Lindsay, 91 Wn. App. at 947. Murray then executed

a new will leaving nothing to Cathy. Lindsay, 91 Wn. App. at 947. He died

unexpectedly three years later, and Cathy petitioned the court for an award in

lieu of homestead. Lindsay, 91 Wn. App. at 947.

       The Court of Appeals held that the intent of the separation agreement was

undisputed. Lindsay, 91 Wn. App. at 951. The agreement stated that "'neither

has a claim or interest in anything acquired after the date of October 1, 1991 or

anytime in the future," and it required that if the parties later reconciled, any

changes to the agreement had to be in a writing and signed by both parties.

Lindsay, 91 Wn. App. at 951. The court held that as of October 1, 1991, Cathy

and Murray were legally separated and their property divided, effective


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No. 77556-1-1/10

immediately. Lindsay, 91 Wn. App. at 951. It explained that "[t]he agreement

clearly reflects an intent to give up those rights which would normally follow legal

spouses" and "showed an intent to prevent, waive, and abandon what a surviving

spouse could normally take." Lindsay, 91 Wn. App. at 951-52. Under the

agreement, Cathy "effectively renounced the marriage and waived the statutory

homestead allowance." Lindsay, 91 Wn. App. at 952.

      The court rejected Cathy's argument that because the separation

agreement did not specifically mention the homestead right, she was entitled to a

homestead allowance. Lindsay, 91 Wn. App. at 951. It held that the homestead

right could be waived by implication and the real question was whether the

parties' actions evidenced a decision to renounce the community with no

intention of resuming the marital relationship. Lindsay, 91 Wn. App. at 951.

Because the separation agreement divided all property and waived all claims to

the others' property and was never rescinded, revoked, or altered, that test was

met. Lindsay, 91 Wn. App. at 952.

      The same analysis applies in this case. Michael and Michelle's

Separation Contract states that lap property which shall hereafter come to either

party shall be his or her separate property and neither party shall hereafter have

any claim thereto." This is similar to the separation agreement in Lindsay, which

the court held "showed an intent to prevent, waive, and abandon what a surviving

spouse could normally take." Lindsay, 91 Wn. App. at 952. As such, Michelle

waived her marital right to intestate succession by entering into the Separation

Contract.


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No. 77556-1-1/11

       Michelle argues that Brown and Lindsay are distinguishable because

those cases dealt with the homestead right applicable to disinherited spouses,

not the right to intestate succession. Although it is true that Brown and Lindsay

do not address the rights of a surviving spouse to intestate succession, the

analysis is still instructive. Both cases analyzed whether a separation contract

that is a final settlement of a married couple's property and rights, effective even

upon death, evidences an intent to waive the statutory marital rights of a

surviving spouse. Michelle's right to intestate succession, like the homestead

right, is a statutory marital right due to a surviving spouse. For that reason,

Brown and Lindsay are persuasive.

       Michelle also argues that the parties' subsequent actions in Brown and

Lindsay were vital to the courts' conclusions that the disinherited spouse

intended to waive the homestead right. Specifically, she highlights the fact that

the spouses in those cases revoked their previous wills that named one another

as beneficiaries and executed new wills that did not provide for any inheritance.

By contrast, Michelle argues that after she and Michael signed the Separation

Contract, they did not take any actions, such as executing a new will, that

showed an intent to waive the right to intestate succession. But, the courts in

Brown and Lindsay did not rely on the parties' subsequent actions. In each of

those cases, the court reached its conclusion based on that the language of the

separation agreements alone. Brown, 28 Wn.2d at 440 ("This conclusion [that

the parties intended to waive the homestead right] is inescapable under the

language that the agreement was to be binding on each of the parties, their heirs


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No. 77556-1-1/12

and assigns forever."); Lindsay, 91 Wn. App. at 951 ("The agreement clearly

reflects an intent to give up those rights which would normally follow legal

spouses.")(emphasis added). The parties' subsequent actions, while further

supporting their intent to waive their homestead rights, were not relied on to find

waiver. Furthermore, in both Brown and Lindsay, a new will was necessary

because the settlement agreement did not automatically disinherit the estranged

spouses from one another's existing wills and the parties had to update their wills

to reflect that intent. Here, Michael did not have a will and there is no evidence in

the record that Michelle had one either, so there was nothing that needed

modification. For these reasons, Michelle's attempt to distinguish Brown and

Lindsay is not persuasive.

       Finally, Michelle argues that even if she waived her right to intestate

succession, remand is necessary to determine whether or not she and Michael

intended to reconcile. She cites evidence in the record that Michael contacted

his attorney on April 2, 2017, to ask that the dissolution be delayed, a no-contact

order be removed, and a house in Leavenworth no longer be included in the

Separation Contract. But even if this were evidence that Michael and Michelle

intended to reconcile, it does not change the result. The Separation Contract

states that it may be "terminated and modified only by a written document so

reflecting, signed by both parties." (Emphasis added.) Michael's email to his

attorney was not a modification or termination that was signed by both parties.

Furthermore, any extrinsic evidence of Michael's intent to reconcile with Michelle

after the execution of the Separation Contract is not needed where the intent of


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No. 77556-1-1/13

the parties at the time of execution is clear, as is the case here. Berg v.

Hudesman, 115 Wn.2d 657, 667, 801 P.2d 222(1990)("[E]xtrinsic evidence is

admissible as to the entire circumstances under which the contract was made, as

an aid in ascertaining the parties' intent."). For these reasons, we decline

Michelle's request to remand for further fact-finding.

                                 ATTORNEY FEES

       Michelle asks this court to award her attorney fees and costs on appeal

and for the proceedings at the trial court under RCW 11.96A.150(1) and

RAP 18.1(a). We deny her request.

       Attorney fees may be awarded only when authorized by a contract, a

statute, or a recognized ground of equity. Labriola v. Pollard Grp., Inc., 152

Wn.2d 828, 839, 100 P.3d 791 (2004). RCW 11.96A.150(1) allows a court to

award costs and reasonable attorney fees to any party in trust and estate

disputes. It states, "[i]n exercising its discretion under this section, the court may

consider any and all factors that it deems to be relevant and appropriate, which

factors may but need not include whether the litigation benefits the estate or trust

involved." RCW 11.96A.150(1).

       Here, Michelle requested attorney fees in the trial court, but the trial court

reserved its decision on fees. Because Michelle is not the prevailing party on the

issue of waiver and her litigation of that issue does not benefit the estate, we

decline to award her fees at trial or on appeal.




                                          13
No. 77556-1-1/14

       We reverse and remand to the trial court to grant Gloria's motion

terminating Michelle's marital right to intestate succession.




WE CONCUR:
                                                  omo\,9-




                                         14
