Pending dissolution settlement not enforceable upon a party's death

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A property-settlement document is not an enforceable contract if one of the parties dies before the dissolution action is finalized, the Indiana Court of Appeals ruled today.

In Dwight Murdock v. Estate of Sharron K. Murdock, No. 45A03-0912-CV-585, Dwight Murdock appealed an interlocutory order from Lake Superior Court’s Probate Division that declared the property-settlement document in his dissolution action created an enforceable contract. The dissolution action between Dwight and Sharron Murdock was pending when Sharron died.

Before her death, Dwight had signed a drafted settlement, and attorneys for Dwight and Sharron had signed under “approved as to form.” Sharron via telephone told her attorney she intended to sign but she did not before her death examine or sign the document, and therefore the dissolution court also did not sign the agreement.

Dwight initially was appointed personal representative of Sharron’s estate, but two of their five children successfully petitioned for his removal, arguing he was not an “interested person” because he forfeited his rights based on probate statutes Ind. Code § 29-1-2-14 and Ind. Code § 29-1-2-15 addressing adultery and spousal abandonment. The two children were then appointed co-representatives of their mother’s estate.

During a hearing before the probate court, the daughters argued the property-settlement document was an enforceable contract and Dwight argued it was now null. The estate asked the probate court to use the property-settlement document as a “template” based of the “intent” of Sharron and Dwight.

Also at the hearing, Sharron’s attorney testified that Sharron had expressed her intention to sign the settlement, and the court admitted into evidence the attorney’s affidavit expressing the attorney’s “professional opinion that the property settlement document ‘was to become effective upon its execution, and was not contingent on any Court approval.’”

The probate court found the document was enforceable, found the issue of abandonment moot, and reserved final judgment regarding whether Dwight had forfeited the right to inherit from Sharron’s estate. Dwight then filed an interlocutory appeal, arguing the probate court effectively required him to “deliver property and execute documents.”

Appellate Judge L. Mark Bailey cited Bailey v. Mann, 895 N.E.2d 1215, 1217 (Ind. 2008), that noted settlement agreements become binding when incorporated into a dissolution decree, and in this case, no such decree would be forthcoming.

The court also cited Johnson v. Johnson, 653 N.E.2d 512, 516 (Ind. Ct. App. 1995), noting that dissolution proceedings, including property settlements, terminate upon the death of one of the parties.

The court noted the settlement document was silent regarding its operation in the event of one of the party’s deaths. It was drafted in contemplation of a dissolution and that would not occur upon Sharron’s death.

Judge Bailey wrote, “… an attempt to enforce the provisions of the property settlement document – which had neither been fully executed nor adopted by the dissolution court – based upon a determination of 'intent' would contravene our Indiana Supreme Court’s directive that marital property settlement agreements become binding when incorporated into the dissolution decree. See Bailey, 895 N.E.2d at 1217.”


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