REL:09/19/2014




Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.




          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1130486
                             ____________________

                             Edward S. Ferguson V

                                           v.

                       Katina Helen Hawe Critopoulos

                    Appeal from Mobile Probate Court
                              (No. 12-2556)



BOLIN, Justice.

      Edward S. Ferguson V (hereinafter referred to as "Tiger")

appeals from the probate court's judgment awarding an omitted-

spouse share of his stepfather's estate to Katina Helen Hawe

Critopoulos.
1130486

    Dimitrios Critopoulos (hereinafter "the decedent") died

on July 15, 2012.     The decedent had no children.         His parents

predeceased him, and he had no siblings.        At the time of his

death, the decedent was married to Katina. The couple had wed

less than a year earlier on August 20, 2011.         The decedent had

a valid will at the time of his death, but the will, which was

executed prior to their marriage, made no provision for

Katina.

    The       decedent's   first   wife,    Dorothy     Marie    Hayes

Critopoulos, had been married to the decedent for 35 years

when she predeceased him in 2009.       Dorothy had three children

from a prior marriage: Crystal M. Hanawalt, Tiger, and Timothy

D. Ferguson ("Tim"). Although the decedent did not adopt

Crystal, Tiger, and Tim, it is undisputed that the three

enjoyed   a    parent-child   relationship    with    the    decedent.

Crystal, Tiger, and Tim were named as the residual legatees

under the decedent's will.

    On December 18, 2012, Tiger filed a petition to probate

the decedent's will in Mobile County.        The executrix named in

the decedent's will was Dorothy, and Crystal was named the

successor.       Crystal   declined    appointment.     The     general


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1130486

administrator   for    Mobile   County   was   then   appointed   to

represent the decedent's estate.

    On April 9, 2013, Katina filed a petition for an omitted-

spouse share of the decedent's estate pursuant to § 43-8-90,

Ala. Code 1975.       On May 29, 2013, Crystal, Tiger, and Tim

filed a response to Katina's petition, in which they asserted

that the decedent had provided for Katina outside the will and

that, therefore, Katina was not entitled to an omitted-spouse

share under § 43-8-90(a).       The probate court held a bench

trial, and on December 23, 2013, it entered the following

order:

         "This cause came before the Court on October 16
    and 17, 2013 on the Petition for Omitted Spouse
    Share filed by Katina Helen Hawe Critopoulos
    ('Katina') and the Answer and Response to Petition
    for Omitted Spouse's Share filed by Crystal M.
    Hanawalt ('Crystal') and Edward S. Ferguson, [V]
    ('Tiger')....

         "The Decedent, Dimitrios P. 'Jim' Critopoulos
    ('Decedent'), was born on November 1, 1952 in
    Greece. The Decedent died in Mobile County, Alabama,
    on July 15, 2012. The Decedent was 52 years old at
    the time of his death. By all accounts, the
    Decedent's death was not expected. At the time of
    his death the Decedent was employed by the United
    States Department of Labor - OSHA Division.

         "The Decedent had no children. The Decedent's
    parents predeceased the Decedent. The Decedent had
    no siblings. At the time of his death the Decedent

                                 3
1130486

    was married to Katina. They were married on August
    20, 2011. Consequently, the Decedent and Katina were
    married to each other for approximately 9 months.

         "The Decedent was married for many years to
    Dorothy Marie Hayes Critopoulos ('Dorothy'). Dorothy
    died on July 28, 2009. Dorothy was also survived by
    three children, from a relationship preceding her
    relationship with the Decedent, namely: Crystal,
    Tiger, and Timothy D. Ferguson ('Tim'). Crystal,
    Tiger, and Tim are all living. It is undisputed that
    Crystal, Tiger, and Tim enjoyed a parent-child
    relationship with the Decedent both before Dorothy's
    death and after Dorothy's death. However, the
    Decedent's relationship with Tim was strained at the
    time of the Decedent's death. The Decedent did not
    adopt Crystal, Tiger, and Tim.

         "The Decedent owned two residences at the time
    of his death: (1) the residence located [on]
    Baratara Drive in Chickasaw ('Baratara Property'),
    and (2) the residence located [on] East Third Street
    in Chickasaw ('Third Street Property'). The Decedent
    and Katina resided in the Baratara Property at the
    time of the Decedent's death and Tim resided in the
    Third Street Property.

         "It is undisputed that the Decedent was
    contemplating the formulation and execution of a new
    last will and testament at the time of the
    Decedent's death. A new last will and testament was
    not finalized because of the Decedent's indecision
    about the Third Street Property and matters relating
    to Tim. It is also noteworthy that all of the
    parties agree that the Decedent was an intelligent
    person.

         "Katina returned to California          after the
    Decedent's death.    Katina currently       resides in
    California.

          "Decedent's Last Will and Testament

                              4
1130486

         "On September 27, 2002, the Decedent made and
    published his last will and testament ('Will'). The
    Will was admitted to probate by the Court on
    February 4, 2013. Frank H. Kruse, Esq. ('Kruse'),
    General Administrator for Mobile County, was
    appointed as the personal representative of the
    Decedent's estate. Letters of Administration on the
    Annexed Will were issued to Kruse on March 1, 2013.

          "The Will provides in pertinent part as follows:

                             "'FOUR

               "'Provided that she survive me, I
          GIVE, DEVISE and BEQUEATH my residential
          homeplace, (including the contents and
          furnishings therein), all real property
          wheresoever situated, all motor vehicles
          (including any automobiles, trucks, boats,
          all terrain vehicles), and all cash assets
          (including but not limited to stocks,
          bonds, certificates of deposits, individual
          retirement   accounts,   thrift   accounts,
          savings accounts, checking accounts, and
          cash on hand) to my wife, DOROTHY MARIE
          CRITOPOULOS.

                             "'FIVE

               "In the event that my wife, DOROTHY
          MARIE CRITOPOULOS, shall not survive me,
          then to my stepchildren, namely, CRYSTAL
          MARIE COLLINS, EDWARD S. FERGUSON, [V], AND
          TIMOTHY D. FERGUSON, I give, devise and
          bequeath the following: my residential
          homeplace, (including the contents and
          furnishings therein), all real property
          wheresoever situated, all motor vehicles
          (including any automobiles, trucks, boats,
          all terrain vehicles), and all cash assets
          (including but not limited to stocks,
          bonds, certificates of deposits, individual

                               5
1130486

          retirement   accounts,  thrift   accounts,
          savings accounts, checking accounts, and
          cash on hand) in equal shares to share and
          share alike; if any of my stepchildren
          predecease me, their share shall go to
          their children per stirpes.

               "'In   order    for   a   designated
          beneficiary to be deemed to have survived
          me, said person must survive me by more
          than thirty (30) days.'

          "Decedent's Relationship With Katina

         "The Decedent first met Katina during Dorothy's
    lifetime. It is undisputed that, approximately 12
    years prior to his death, the Decedent had a
    romantic extramarital relationship with Katina,
    while the Decedent was married to Dorothy. No
    testimony was presented as to whether Dorothy was
    aware of the Decedent's relationship with Katina.
    Tiger and Crystal didn't learn of the relationship
    until Katina moved to Mobile.

         "The Decedent and Katina had contact with each
    other following Dorothy's death. Katina came from
    California to Mobile, Alabama, with all of her
    personal belongings in her suitcase. The Decedent
    purchased Katina's airline ticket to travel from
    California to Mobile. According to Bryan Robert
    Smith-Angel ('Smith'), the Decedent's best friend,
    Katina told the Decedent that Katina would not come
    to Mobile unless they got married.

         "The Decedent considered having a prenuptial
    contract with Katina and deliberately chose not to
    pursue such. The Decedent and Katina married on
    August 20, 2011. During the marriage the Decedent
    purchased a motor vehicle for Katina. The Decedent
    also paid the apartment rental for Katina's
    daughter, who resided in California after Katina
    moved to Mobile.

                              6
1130486

          "Decedent's Estate

         "As noted earlier, the Decedent was gainfully
    employed in the United States Civil Service at the
    time of the Decedent's death. At the time of his
    death, the Decedent owned the following property
    with the indicated estimated value:

    "Property                           Estimated
                                        Value

    "Baratara Property                  $l52,500.00

    "Third Street Property                80,500.00

    "'Greek Bonds' held by HSBC            unknown1

    "U.S. Savings Bonds                   16,700.00

    "Regions Bank account                 89,342.81

    "Money Concepts Account               45,000.00
                                        plus2

    "E-Trade Account                    transferred
                                        to estate
                                        account
                                        (Regions)

    "Thrift Savings Plan                Approximately
                                        $422,170.003

    "Household items, furniture           $6,280.004
    and furnishings at Baratara
    Property

    "Fine jewelry                         $4,671.00

    "Watches                                $687.00

    "Firearms                             $4,000.005


                               7
1130486

    "2007 Chevrolet Tahoe                    $23,500.00
         [sport-utility vehicle]

         "Excluding the value of the Thrift Savings Plan
    and the Money Concepts Account, the value of the
    Decedent's estate at the time of the Decedent's
    death was approximately $378,200. Of said amount,
    $233,000 is attributed to the estimated value of two
    residences. The real estate market in the Mobile
    area has been and remains depressed. The real estate
    holdings comprise 61.6 percent of the Decedent's
    total estate.

         "Additionally, the Decedent had the following
    life insurance policies:

    "Policy                            Estimated Value

    "FEGLl (administered           approx. $ 542,200.006
    by MetLife)

    "Army Aviation Center FCU                 $2,061.787

    "ASC                                    $100,000.008

         "Finally, the Decedent maintained a 'trust
    account' for one of Crystal's daughters, which had
    approximately $8,000 at the time of the Decedent's
    death.

           "Katina's Separate Estate at Time of Marriage

         "At the time of Katina's marriage to the
    Decedent, Katina had no savings and was 'working
    paycheck to paycheck.' Further, Katina owned no real
    estate. Several months before the Decedent died,
    Katina worked. Katina had a separate checking
    account.

         "What Katina Has Received as a Result of the
    Death of the Decedent


                               8
1130486

         "At the time of the Decedent's death, the
    Decedent and Katina had a joint checking account
    with rights of survivorship.      Katina also had a
    separate checking account. Katina received the funds
    in these checking accounts. The Decedent executed
    the appropriate documentation prior to his death to
    facilitate   Katina    receiving:    (1)   a   share
    ($211,084.85) of the Decedent's 'Thrift Savings
    Plan' benefits; (2) fifty (50%) share ($271,101.02)
    of the Decedent's life insurance benefits (through
    the 'FEGLI' program administered by MetLife); (3)
    $75,517.98 of lump sum death benefits (reduced
    approximately $ 15,000.00 for anticipated federal
    taxes); and (4) $ 2,061.78 of life insurance through
    the Army Aviation Center Federal Credit Union.
    Katina also received $3,325.59 from the United
    States Government (the Decedent's employer) for
    unpaid compensation due the Decedent. Finally,
    Katina receives a monthly stipend of $532.37 as the
    Decedent's surviving spouse. The lump sum payments
    to Katina total $548,091.22.

         "What Dorothy's Children Have Received as a
    Result of the Death of the Decedent

         "Crystal and Tiger each received 25 percent
    shares of the Decedent's Thrift Savings Plan and
    life insurance benefits (through the 'FEGLI' program
    administered by MetLife). Tiger and Crystal were
    also the death beneficiaries of the Money Concepts
    Account. Tiger, Crystal, and Tim were the named
    beneficiaries of the ASC insurance policy. Tiger
    testified that Tiger had received the policy assets
    as a result of the Decedent's death:

    "Thrift Savings -    $105,542.42

    "FEGLI (MetLife) -   $135,550.51

    "Money Concepts -     $45,000.00

    "ASC Insurance Policy - 1/3 of $100,000

                              9
1130486

    "Altogether, Dorothy's children have collectively
    received approximately $672,186.00 a result of the
    Decedent's death.9

         "Decedent's Comments Regarding Disposition of
    Decedent's Estate

         "When Dorothy died, title to most, if not all,
    of the Decedent's and Dorothy's assets were held
    joint with rights of survivorship or in one of the
    spouse's name with the other spouse individual as
    the beneficiary upon death. The Decedent was the
    beneficiary of Dorothy's individual retirement
    account, with Dorothy's children named as contingent
    beneficiaries. The Decedent received the assets of
    Dorothy's   individual   retirement   account   upon
    Dorothy's death.

         "Tiger testified that the Decedent told Tiger
    before the Decedent and Katina married that: (1) the
    Decedent and Katina planned to get married, (2) any
    property the Decedent acquired before his marriage
    to Katina would be devised by the Decedent to Tiger,
    Crystal, and Tim upon the Decedent's death, and (3)
    any property the Decedent acquired after his
    marriage to Katina would be devised to Katina. After
    the Decedent married Katina, Tiger's relationship
    with the Decedent continued. There were periodic
    visits. According to Tiger, on one such visit the
    Decedent told Tiger that the Decedent intended to
    make financial provisions for Katina, although he
    (the Decedent) did not know how he would do so.

         "Smith testified that the Decedent told Smith
    that he (the Decedent) planned to formulate a new
    last will and testament that would provide for
    Katina, Tiger, and Crystal. According to Smith the
    Decedent wanted to provide for Katina because 'she
    was his wife and he loved her.'

           "Smith testified that approximately three to
    five    months preceding the Decedent's death the

                             10
1130486

    Decedent and Smith had a conversation about a new
    estate plan the Decedent proposed formulating. Smith
    testified that in said conversation the Decedent
    stated that the Decedent wanted to: (1) devise the
    Baratara Property to Katina; (2) devise the Third
    Avenue residence to Tiger and Crystal (in order to
    afford Tim a place to reside in fulfillment of a
    promise the Decedent made to Dorothy before her
    death); (3) name Katina as the beneficiary of an
    existing life insurance policy where Dorothy was the
    named beneficiary; and (4) name Katina, Tiger, and
    Crystal as the beneficiaries of the Decedent's
    'government life insurance' and other life insurance
    on the Decedent's life. Smith testified that he told
    the Decedent that he (Smith) objected to the
    Decedent's proposal, saying 'you can't do that to
    the kids -- you need to split the property equally
    amongst them.'

         "Crystal and the Decedent conversed about a
    month prior to the Decedent marrying Katina, and the
    Decedent stated that Katina was not interested in
    the Decedent's money. Crystal also testified that
    following the Decedent's marriage to Katina, Crystal
    and the Decedent spoke several times regarding the
    Third Street residence. Crystal testified that the
    Decedent told Crystal that the Decedent had promised
    Dorothy that Tim would have a place to live. The
    Decedent was afraid that Tim would lose the Third
    Street residence if it was deeded outright to Tim
    and the Decedent wanted to give the house to Crystal
    with the understanding that Tim could reside in the
    residence. Crystal further testified that she
    objected to the Decedent devising the Third Street
    residence to Crystal because she did not want the
    responsibility. Crystal testified that she had no
    discussions   with   the  Decedent   regarding   the
    Decedent's other assets. Finally, about a month
    before the Decedent died, Crystal testified that the
    Decedent told Crystal with reference to Katina that
    'I will make sure she's taken care of if something
    happens to me.'

                            11
1130486

         "Katina testified that the Decedent told her
    that upon his death the Decedent desired: (1) Katina
    receive the Baratara Property; (2) Tiger and Crystal
    receive the Third Street Property, with Tim
    continuing to reside in said residence; (3) other
    financial arrangements would be made to provide
    compensation to Tiger and Crystal because Dorothy
    had lived in and helped acquire the Baratara
    Property; and (4) all of the Decedent's remaining
    assets with the exception of various firearms and
    household   furnishings    and   personal   property
    purchased prior to the Decedent and Katina being
    married, would be devised to Katina.

          "Events Following Decedent's Death

         "There was electronic mail ('e-mail') dialogue
    between Katina and Crystal following the Decedent's
    death regarding the disposition of the Decedent's
    estate. In an e-mail message dated August 11, 2012
    (approximately one month following the Decedent's
    death), Katina related to Crystal that she (Katina)
    knew 'Jim's [the Decedent] wishes ... and I'm
    willing to execute them. This way I can be the "fall
    guy" with Tim and it not interfere with your sibling
    relationship.' This e-mail message was sent days
    before Katina and Tiger met with Charles Hicks
    ('Hicks'), a lawyer in Mobile, Alabama.

         "Hicks met with Katina on four (4) or five (5)
    occasions to discuss the Will. Katina, Tiger, and
    Smith were physically present at the initial meeting
    and Crystal participated by telephone. At the
    initial meeting, the persons present discussed the
    Decedent's intentions and wishes. At said meeting
    Katina indicated that the Decedent wanted the bulk
    of his estate to go to Katina, Crystal, and Tiger.
    Katina further indicated that the Decedent had had
    a falling out with his other stepson (by deduction
    this was Tim). Katina stated that the Decedent's
    wishes were for Tim to receive nothing of the
    Decedent's estate.

                             12
1130486

         "At the meeting with Hicks, the parties
    attempted to reach an agreement regarding the
    distribution of the Decedent's assets in a manner
    that differed from the provisions of the Will (Tim
    would receive less than the others). Hicks testified
    that the parties recognized that any agreement to
    distribute the Decedent's assets in a manner
    different from what the Will provided would require
    Tim's agreement. Hicks prepared and filed with the
    Court the petition to probate the Will. As noted
    above, the Will was admitted to probate without
    objection.    There     were    several    follow-up
    conversations between Hicks and Katina and Tiger.
    The parties could not reach an agreement. Based upon
    comments made in the subsequent conversations, Hicks
    determined that he had a conflict of interest and
    Hicks withdrew from representation of any party in
    interest in this cause.

         "In a document dated February 1, 2013, that was
    presented to Tiger and Crystal, Katina stated that
    she expected the following:

    "1. 50 percent of the following assets:

          "A.   Baratara Property
          "B.   Third Street Property
          "C.   U.S. Savings Bonds
          "D.   All accounts administered by Money Concepts
          "E.   Scottrade accounts
          "F.   E Trade accounts
          "G.   2007 Chevy Tahoe
          "H.   All accounts held at HSBC in Greece

    "2.   One firearm the Decedent purchased shortly
    before his death

    "3. The household furnishings purchased while the
    Decedent and Katina were a couple (identified as the
    living room furniture, informal dining set, bed,
    television, wedding gifts, and Greek language
    recordings).

                               13
1130486

          "Posture of Decedent's Estate Proceeding

         "On April 9, 2013, Katina filed her 'Petition
    for an Omitted Spouse's Share Pursuant to Ala. Code
    1975 § 43-8-90, or, in the Alternative for Further
    Relief.' In her prayer for relief Katina requested
    that the Court determine that Katina was the
    Decedent's omitted spouse.    Alternatively, Katina
    requested that the Court award Katina her elective
    share pursuant to Ala. Code 1975, § 43-8-70, and the
    allowance provided in Ala. Code 1975, §§ 43-8-110,
    111 and 112. Later, Katina withdrew her request for
    an elective share.

    "

         "1The parties apparently all agree that the
    value of the Greek bonds is questionable.

         "2This account was payable on death to Tiger and
    Crystal.    Tiger testified that he had received
    $45,000 as a result of this asset.        The amount
    Crystal received is unknown.

         "3The pay-on-death beneficiaries of the Plan
    were Katina (50 percent), Tiger (25 percent) and
    Crystal (25 percent).

         "4According to her February 1, 2013, statement
    (see below), Katina has possession of the living
    room    furniture,   informal   dining   set,   bed,
    television, wedding gifts and Greek language
    recordings that were in the Baratara Property. It
    is uncertain as to whether these assets are included
    in the Personal Representative's inventories.

         "5According to her February 1, 2013, statement,
    Katina has possession of one firearm (described as
    being a 'handgun'). It is uncertain as to whether
    this    firearm  is   included   in   the   Personal
    Representative's inventories.


                             14
1130486

         "6The pay-on-death beneficiaries of the policy
    were Katina (50 percent), Tiger (25 percent) and
    Crystal (25 percent).

          "7Katina was the beneficiary of this policy.

         "8The pay-on-death beneficiaries of the policy
    were Tiger, Crystal and Tim (one-third each).

         "9Computation  presumes  that   Crystal   also
    received $45,000 as a result of being a 50 percent
    death beneficiary of the Money Concepts Account."

    The probate court went on to discuss the applicable

caselaw   regarding § 43-8-90.      The probate court listed

several points a court is to consider in making omitted-spouse

determinations.     The probate court noted that § 43-8-90

provides that an omitted spouse shall receive the same share

of the estate he or she would have received if the decedent

had left no will.   The intestate share for a surviving spouse

is set out in § 42-8-41, Ala. Code 1975, and the probate court

noted that because the decedent had no biological children and

no surviving parents, Katina would be entitled to all of the

decedent's intestate estate.

    The probate court concluded:

         "In the instant cause, Tiger and Crystal have
    the burden of proving that the transfers by the
    Decedent to or for the benefit of Katina were
    intended to be in lieu of a testamentary provision.
    As noted above, an indication of such can be

                               15
1130486

    obtained by comparing the value of the probate
    estate to the value of the property the respective
    interested parties have received or will receive.
    Tiger and Crystal provided such information to the
    Court.    However, the Alabama appellate cases
    discussed herein and the decisions of other states'
    appellate courts cited with approval by the Alabama
    Supreme Court note that there are other factors to
    be considered as well by a trial court when trying
    to determine a testator's intent in this type of
    matter.

         "Tiger and Crystal provided no other evidence to
    support their position that at the time the Decedent
    made the beneficiary designations that made Katina
    a beneficiary, the Decedent intended by those
    designations and actions that Katina receive said
    benefits in lieu of a testamentary provision.

         "Further, the actual documents reflecting the
    beneficiary designations for the Decedent's Thrift
    Savings Plan and FEGLI life insurance benefits were
    not introduced into evidence. Consequently, the
    Court is unable to consider the timing of said
    actions by the Decedent in relation to the
    Decedent's statements to Tiger, Crystal, Smith, and
    Katina that the Decedent wanted to revise the Will
    and update his estate plan. There was no testimony
    that the Decedent told anyone that he was making the
    beneficiary designations in question that benefited
    Katina in lieu of a testamentary provision in favor
    of Katina.

         "Testimony was presented that the Decedent
    considered having a prenuptial contract with Katina
    and deliberately chose not to pursue such. The
    deliberate act of not having a prenuptial contract
    is noteworthy in the instant cause.

         "Tiger and Crystal cited Wester [v. Baker, 675
    So. 2d 447 (Ala. Civ. App. 1996),] in support of
    their position. As noted above, in Wester was

                             16
1130486

    testimony   that   the    decedent   stated   to   a
    disinterested person that the decedent was pleased
    with her last will and testament the way it had been
    drafted and she would leave it that way. Wester, 615
    So. 2d at 448. As noted by Katina, it is clear that
    in Wester the decedent did not plan to change the
    decedent's last will and testament. The undisputed
    testimony in this cause is the exact opposite: (1)
    the Decedent was not happy with the Will; (2) the
    Decedent desired to change the Will; and (3) the
    Decedent was struggling with how to provide for
    Katina, address his testamentary provision for Tim,
    and address the Third Street Property.11

         "The Court is cognizant that: (1) the purpose of
    the omitted spouse statute is to preserve the
    remainder of the will, while still providing for the
    omitted spouse; (2) by ruling that Katina is an
    omitted spouse, coupled with the provisions of Ala.
    Code 1975, § 43-8-41, practically speaking, Tiger,
    Crystal,   and   Tim   will   not    participate   as
    beneficiaries of the Decedent's probate estate and
    Katina will be the only beneficiary of the
    Decedent's probate estate; and (3) Katina will
    receive more than she acknowledged that the Decedent
    intended for her to receive upon his death.

         "At first blush, this result appears harsh.
    However, it must be remembered that: (1) surviving
    spouses are accorded special rights in the law;12 (2)
    children of decedents13 can be and are frequently
    disinherited by their parents;14 (3) adult children
    of a decedent are not accorded any special status in
    this aspect of probate law; and (4) the Alabama
    Legislature specifies Alabama's statutory-positive
    law, not the courts. Notwithstanding such, it must
    also be noted that Tiger, Crystal, and Tim have all
    received substantial amounts as a result of the
    Decedent's death, which the Decedent was not legally
    required to provide to them. Finally, it must be
    remembered that this Court (and all courts) make
    rulings based upon the law, not what a particular

                             17
1130486

    person in a position to make a decision likes or
    considers moral. Because of the facts in this case,
    Katina will receive more of the Decedent's estate
    than she acknowledged the Decedent desired for her
    to receive. Such is a moral matter for Katina to
    ponder and act as her conscience dictates.

         "Upon consideration of demeanor of all of the
    witnesses, the documentary evidence introduced and
    applicable law, the Court is of the opinion, for the
    reasons stated herein, that Tiger and Crystal failed
    to meet their burden of proving that the transfers
    by the Decedent to or for the benefit of Katina were
    intended to be lieu of a testamentary provision.

         "Upon consideration of demeanor of all the
    witnesses, the documentary evidence introduced and
    applicable law, the Court is of the opinion, for the
    reasons stated herein, that Katina is an omitted
    spouse in this cause and that she should be accorded
    such status in the Decedent's estate.


    "________________

         "11The Court notes that Tim is in possession of
    the Third Street Property. There was no evidence
    that the Decedent ever told Tim or any other party
    in interest that the Decedent was conveying or
    gifting the Third Street Property to Tim. And there
    is no specific devise of the Third Street Property
    to Tim in the Will. Consequently, the Court found
    no legal bases to rule that Tim now owns the Third
    Street Property or to declare that Tim would receive
    the Third Street Property.      See also, Ala. Code
    1975, §§ 8-9-2 and 35-4-20.

         "12Surviving  spouses'   special  status   is
    reflected in allowances, exemptions available to
    them, along with the right to elect against a will
    or to assert rights as an omitted spouse, as was
    done by Katina in the instant cause.

                            18
1130486


         "13In the instant cause it is undisputed that
    Tiger, Crystal, and Tim are not the Decedent's
    children.    The only basis for their having an
    interest in the Decedent's estate is their being
    named beneficiaries in the Will.

         "14It is very common for married persons with
    children to provide in their last will and testament
    that their entire estate will be devised to their
    surviving spouse upon their death, even if there are
    children of said marriage. Typically when there is
    a   second   spouse   and  children   of   a   prior
    relationship, testators make testamentary provisions
    for their surviving spouse or otherwise they have a
    prenuptial contract."

    Tiger filed a timely appeal.

                     Standard of Review

    Because the probate court received evidence ore tenus,

our review is governed by the following principles:

         "'"'[W]hen a trial court hears ore tenus
    testimony, its findings on disputed facts are
    presumed correct and its judgment based on those
    findings will not be reversed unless the judgment is
    palpably erroneous or manifestly unjust.'"' Water
    Works & Sanitary Sewer Bd. v. Parks, 977 So. 2d 440,
    443 (Ala. 2007)(quoting Fadalla v. Fadalla, 929 So.
    2d 429, 433 (Ala. 2005), quoting in turn Philpot v.
    State, 843 So. 2d 122, 125 (Ala. 2002)). '"The
    presumption of correctness, however, is rebuttable
    and may be overcome where there is insufficient
    evidence presented to the trial court to sustain its
    judgment."' Waltman v. Rowell, 913 So. 2d 1083, 1086
    (Ala. 2005)(quoting Dennis v. Dobbs, 474 So. 2d 77,
    79 (Ala. 1985)). 'Additionally, the ore tenus rule
    does not extend to cloak with a presumption of
    correctness a trial judge's conclusions of law or

                             19
1130486

    the incorrect application of law to the facts.'
    Waltman v. Rowell, 913 So. 2d at 1086."

Retail Developers of Alabama, LLC v. East Gadsden Golf Club,

Inc., 985 So. 2d 924, 929 (Ala. 2007).

                         Discussion

    Section 43-8-90 provides:

         "(a) If a testator fails to provide by will for
    his surviving spouse who married the testator after
    the execution of the will, the omitted spouse shall
    receive the same share of the estate he would have
    received if the decedent left no will unless it
    appears from the will that the omission was
    intentional or the testator provided for the spouse
    by transfer outside the will and the intent that the
    transfer be in lieu of a testamentary provision be
    reasonably proven.

         "(b) In satisfying a share provided by this
    section, the devises made by the will abate as
    provided in section 43-8-76[, Ala. Code 1975]."

    In Hellums v. Reinhardt, 567 So. 2d 274 (Ala. 1990), this

Court addressed, for the first time, the interpretation of §

43-8-90 and the burden of proof in actions brought pursuant to

the omitted-spouse statute.   We recognized that § 43-8-90 was

based upon the Uniform Probate Code ("UPC") drafted by the

National Conference of Commissioners on Uniform State Laws:

         "The purpose of § 43–8–90, which is based on UPC
    §   2–301,    is   to   remedy   the   unintentional
    disinheritance of a spouse when the decedent's will
    was executed before their marriage. The adoption of

                              20
1130486

       that section reflects 'the view that the intestate
       share of the spouse is what the decedent would want
       the spouse to have if he had thought about the
       relationship of his old will to his new situation.'
       Commentary to § 43–8–90."

567 So. 2d at 277.

       The Hellums Court looked to other states that had adopted

versions of the UPC's omitted-spouse provision.               The Court

concluded that the burden of proof that must be met is that

once the surviving spouse proves that he or she was omitted

from    the   will,   the   burden   of   proof   then   shifts   to   the

proponent of the will to show that the testator provided for

the surviving spouse by inter vivos transfers and that those

transfers were intended to be in lieu of a testamentary

provision. This interpretation was consistent with the courts

in North Dakota and Arizona as set out in In re Estate of

Knudsen, 342 N.W.2d 387 (N.D. 1984), and In re Estate of

Beaman, 119 Ariz. 614, 583 P.2d 270 (Ariz. Ct. App. 1978),

respectively.     The Court stated:

       "Shifting the burden to the proponent of the will to
       prove that the testator provided for the spouse
       outside the will is most consistent with the terms
       of the statute, which requires that the will make
       apparent an intent to omit the future spouse or that
       the testator's intent to substitute an inter vivos
       transfer for a testamentary provision be reasonably
       proven."

                                     21
1130486

567 So. 2d at 277.      The Court went on to address inter vivos

transfers that have been held to be in lieu of testamentary

provisions, such as the opening of joint-tenancy checking

accounts and savings accounts and the assignment of retirement

or insurance benefits as set out in In re Estate of Taggart,

95 N.M. 117, 619 P.2d 562 (N.M. Ct. App. 1980).          The Court

also    noted   other    transfers    that   would   satisfy   this

requirement, as set out in Annot., 11 A.L.R. 4th 1213 (1982).

       In Hellums, the decedent executed her will on June 29,

1987.     She married Hellums on May 20, 1988, and remained

married to him until her death on December 1, 1988.              No

evidence was presented that the decedent gave Hellums any

inter vivos gifts, and the decedent's will did not contain any

language indicating that the decedent intended to omit a

future spouse or restrict a future spouse's inheritance.

Holding that the probate court had erred in finding that

Hellums was not entitled to an intestate share as an omitted

spouse, this Court reversed the judgment.

       In Becraft v. Becraft, 628 So. 2d 404 (Ala. 1993), the

widow petitioned for an omitted-spouse share of the decedent's

estate. The widow showed her eligibility as an omitted spouse


                                 22
1130486

under § 43-8-90 by presenting evidence indicating that she was

married to the decedent until his death seven months after the

marriage.    The decedent had a will at the time of his death.

However, that will had been written years earlier and left his

entire estate to Barbara, his wife at time the will was

executed.    The decedent's will also provided that, if Barbara

predeceased him, the estate would go their children.              It was

undisputed that the decedent made the widow the beneficiary of

a $25,000 life-insurance policy.           The issue was whether the

children, as proponents of the will, reasonably proved that

the decedent intended the insurance proceeds to be in lieu of

a testamentary provision. The probate court concluded that the

children had not carried their burden of showing that the

insurance    policy    was   given    in   lieu   of   a   testamentary

provision.     The     children's     testimony   that     the   decedent

intended his estate to go them was contradicted by the widow's

testimony.       The     probate      court   also     considered     the

circumstances surrounding the decedent's marriage and death.

The probate court also considered the amount of the insurance

proceeds and the size of the intestate share.            We affirmed the

probate court's judgment.      We noted that the size of an inter


                                     23
1130486

vivos gift or one that passes outside the estate in relation

to the intestate share is relevant to the question whether the

gift was intended to be in lieu of a testamentary provision

but that there is no requirement that an inter vivos or extra-

estate gift be equal to or approximately the same as an

intestate   share   to   qualify   as   a   transfer   in   lieu   of   a

testamentary provision.

    In Kellum v. Dutton, 706 So. 2d 1179 (Ala. 1997), the

husband filed a petition against his deceased wife's estate,

seeking a share as an omitted spouse.         In 1988, the wife had

executed a will leaving her residual estate to her nephew and

his wife.   On December 13, 1991, the parties entered into a

prenuptial agreement, conditioned upon their future marriage,

whereby each waived and released "all rights" to the other's

estate.   On December 14, 1991, the parties married.          In 1994,

the wife died.   The husband was not entitled to a share of the

wife's estate as a surviving spouse omitted from the wife's

1988 will, which predated their marriage.              The prenuptial

agreement was a vehicle of transfer, outside the will, and

constituted sufficient proof of the wife's intent that that




                                   24
1130486

inter vivos transfer be in lieu of making provisions for the

husband in her will.

    The Court of Civil Appeals in Wester v. Baker, 675 So. 2d

447 (Ala. Civ. App. 1996), upheld the probate court's holding

that the husband was not entitled to a share as an omitted

spouse.     The wife had executed a will in 1972, naming her

niece as the sole beneficiary and the executrix of her will.

The wife married the husband in 1973. In 1974, they purchased

real property in joint tenancy with right of survivorship, and

they lived on this property.    The wife had another parcel of

property.    The wife died in 1994.   The husband petitioned the

probate court to receive a share of the wife's estate as an

omitted spouse.     The niece, as the proponent of the will,

presented evidence from one of the wife's sisters indicating

that she and the wife had discussed the will about a year

before the wife's death and that the wife had helped the

husband purchase the house so that he would have a home of his

own and so that she would not have to change her will.    There

was also testimony from the wife's sister-in-law that the wife

told her that the husband had been pestering her to change the




                               25
1130486

will but that she was pleased with the will and would leave it

the way it was.

    The purpose of § 43-8-90 is to avoid an unintentional

disinheritance of the spouse of a testator who had executed a

will prior to the parties' marriage. It serves to give effect

to the probable intent of the testator and protects the

surviving spouse.    The operative effect of § 43-8-90 is to

carve out an intestate share as a vehicle to carry out the

probable intent of the testator and to protect the omitted

spouse.   Section 43-8-90 goes on to provide two exceptions to

allowing an omitted spouse an intestate share: (1) if it

appears from the will that the omission of the surviving

spouse was intentional or (2) if the testator provided for the

surviving spouse with transfers outside the will with the

intent that those transfers were in lieu of a provision in the

will. If either exception exists, the surviving spouse is not

entitled to a share as an omitted spouse.

    Based on Hellums and its progeny, and the cases this

Court cited in Hellums, we discern the following regarding a

determination whether the testator provided for the surviving

spouse outside the will: (1) inter vivos transfers that have


                              26
1130486

been held to be "transfers" in lieu of testamentary provisions

include    joint-tenancy       checking     and   savings     accounts   and

assignments of retirement or insurance benefits; (2) the size

of the inter vivos transfer or a transfer that passes outside

the estate in relation to the intestate share may be a

relevant comparison, but there is no requirement that the

inter vivos or extra-estate gift be approximately the same as

the intestate share in order to qualify as a transfer in lieu

of a testamentary provision; (3) a valid prenuptial agreement

is a "transfer" outside the will and constitutes sufficient

proof     of   intent   that    that    transfer    is   in    lieu   of   a

testamentary provision; (4) statements made by the testator

concerning transfers outside the will may be relevant to show

the testator's intent that the transfers be in lieu of a

testamentary provision; (5) statements made by the testator

concerning the old will in relation to the new marriage may be

relevant to show that the testator reexamined the will and did

not change the will;      (6)the separate estate of the surviving

spouse may be relevant; (7) the duration of the marriage may

be relevant; and (8) the beneficiaries under the will may be

relevant.


                                       27
1130486

    Because § 43-8-90 is designed to give effect to the

probable intent of the testator and to protect the surviving

spouse, the above-listed relevant considerations or factors

are not exclusive. Other factors may also be considered. The

factors relevant in one case may not be relevant in another.

These factors are not a mechanical checklist to reasonably

prove the testator's intent that the transfer be in lieu of a

testamentary provision, because the circumstances and facts

vary from case to case in probate proceedings such as this.

    With this in mind, we turn to the present case.     It is

undisputed that the decedent executed his will in 2002 and

that he and Katina married in 2011. Nothing in the decedent's

will indicates that the omission of Katina from the will was

intentional; therefore, the first exception to the omitted-

spouse share is not applicable.1     Now, we must determine

whether the probate court correctly held that the second

exception was not met, i.e., that Tiger failed to reasonably


    1
     Section 43-8-90 is based on § 2-301 of the UPC. Since
the adoption of § 43-8-90, § 2-301 has been amended to provide
for the following exception to the omitted-spouse share: If
"it appears from the will or other evidence that the will was
made in contemplation of the testator's marriage to the
surviving spouse," then the surviving spouse is not entitled
to the omitted-spouse share. (Emphasis added.)
                             28
1130486

prove that the decedent provided for Katina outside the will

and that those transfers were in lieu of a testamentary

provision.

      The decedent died in 2012, without changing his will.

The decedent had no children, his parents had predeceased him,

and he had no surviving siblings.         Because § 43-8-90 provides

that an omitted-spouse share is what the omitted spouse would

have received if the decedent had had no will, then under the

intestate statute, § 43-8-41(1), Ala. Code 1975, Katina would

receive the decedent's entire estate. The beneficiaries under

the will are Crystal, Tiger, and Tim.           It is undisputed that

the   decedent   had    a    "parent/child"    relationship    with   his

stepchildren before          Dorothy's death and that he remained

close to Crystal and Tiger after Dorothy's death.                     When

Dorothy predeceased the decedent, all of their assets were

held jointly with rights of survivorship.             The decedent was

the beneficiary of Dorothy's retirement accounts.

      Katina   and     the   decedent    had   an   affair   during    the

decedent's marriage to Dorothy.           Katina refused to come to

Alabama unless she and the decedent married.             Katina had no

separate estate; she was living paycheck to paycheck before


                                    29
1130486

she married the decedent.       Katina and the decedent were

married for less than a year before his death.

    The decedent provided Katina with inter vivos transfers

and transfers outside the will, including checking accounts,

life insurance, and retirement benefits.      Those transfers

amount to lump-sum payments totaling approximately $548,000

and a monthly stipend for the rest of her life in the amount

of $900 in pension benefits.2      Crystal, Tiger, and Tim all

received inter vivos transfers and transfers outside the will.

Crystal and Tiger each received approximately $319,000, and

Tim received $33,000.   The trial court valued the decedent's

probate estate at $378,200 with $233,000 attributed to two

residences.   The probate court valued the decedent's property

located on Baratara Drive at $152,500, although the house

actually sold for $77,000 after the decedent's death.

    There was testimony that the decedent was considering

changing his will after his marriage to Katina.   The decedent

told Katina and his best friend that he was considering



    2
     This amount differs from the amount shown by the probate
court ($532.37) because the probate court did not include the
health-insurance premium that is deducted from the pension
benefit.
                              30
1130486

leaving the property on Third Avenue to Tim to fulfil a

promise to Dorothy to provide a house for Tim.               The decedent

was also considering leaving the property on Baratara Drive to

Katina in order for her to have a place to live because she

had moved to Alabama to marry the deceased.                 The decedent

could not decide what to do, and he did not change his will.

The decedent told Crystal and Katina that he was going to

provide for Katina.         Although the probate court states that

"by all accounts " the decedent died unexpectedly, there was

testimony from Crystal that the decedent was sick and had been

hiding    his    illness.       There    was   also   testimony   from   the

decedent's best friend that the decedent was on oxygen the

last few months of his life.

    The probate court focuses on the fact that the decedent

never stated that the transfers he made to Katina were in lieu

of changing his will.          Although such testimony was present in

Wester, supra, and would have been helpful here, it is not the

only evidence relevant to show the testator's intent.                 Here,

the decedent, during his brief marriage to Katina, changed

beneficiaries       on   his    retirement     accounts    and    insurance

policies.       He was considering changing his will, but did not


                                        31
1130486

do so.    In short, he considered his old will in relation to

his new marriage.     He also substantially provided for Katina;

Katina acknowledges that, if she received the intestate share,

she would be receiving more than the decedent intended her to

have.

    The    probate   court    focuses      on   the   fact   that   Tiger

presented no evidence of the precise dates when the decedent

changed the beneficiaries of his retirement accounts and life-

insurance policies. In In re Taggart's Estate, supra, the New

Mexico court noted that the intent of the decedent at the time

of the transfers controlled. In that case, there was an issue

as to whether the transfers to the wife were to provide her

with a convenient method for managing the couple's expenses or

whether the transfers were for the wife's benefit.                    The

decedent in Taggart made the transfers to his wife shortly

after    their   marriage,   and   there    was   testimony    that   the

decedent stated that he wanted to "protect" the wife.                 The

court stated that it was not material that the transfers were

later used by the wife for day-to-day expenses.              The Taggart

court went on to discuss whether the transfers were in lieu of

a testamentary provision and considered the facts that the


                                   32
1130486

marriage was brief, that the inter vivos transfers to the

widow represented 20 percent of the decedent's total estate,

that the widow was also receiving monthly retirement benefits

as a result of the marriage, and that there was testimony that

the decedent had wanted to provide for his former mother-in-

law, who was the beneficiary under the will.           The court held

that the transfers were in lieu of a testamentary provision.

    Although the precise timing of a transfer and the type of

transfer may be relevant in some cases to show the intent of

the decedent at the time a transfer is made as to whether it

was a "transfer" under the omitted-spouse statute or whether

it was for some other purpose, it is undisputed in the present

case that the transfers were transfers outside the will under

§ 43-8-90. The issue in this case was whether those transfers

were in lieu of a testamentary provision.               Also, no one

disputes that the decedent changed the beneficiaries to his

retirement and insurance policies during his brief marriage to

Katina.

    In the present case, the amount of the transfers made

during    the   marriage,   along    with   the   testimony   that   the

decedent considered the terms of his will, the fact that


                                    33
1130486

Katina was not included in the will, the fact that the

decedent did not change his will, and the fact that the will

ultimately benefited Dorothy's children           provide reasonable

proof to satisfy Tiger's burden of proving an exception to the

omitted-spouse share under the facts of this case.              We are

cognizant of our standard of review, given that the probate

court heard ore tenus evidence. However, it was the main role

of the probate court in this case to apply the law to the

largely undisputed material facts.           We also are aware that

this is the first time this Court has set out any guidelines

for determining whether a transfer outside a will was in lieu

of a testamentary provision, and we applaud the probate court

for its well-written order.

     Based on the foregoing, the judgment of the probate court

is   reversed,   and   the   cause    is   remanded   for   proceedings

consistent with this opinion.

     REVERSED AND REMANDED.

     Moore, C.J., and Murdock, Main, and Bryan, JJ., concur.




                                     34
