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In re Estate of Myers - 825 N.W.2d 1 (Iowa 2012)


The postamendment version of Iowa Code § 633.238 (Supp. 2009) states that the elective share of the surviving spouse "shall be limited to all of the following." Iowa Code § 633.238. It is clear that the legislature, by this language, intended to limit the property that would be included in the surviving spouse's elective share to the four categories of property specifically identified in the statute. Under the controlling language of the amendment, the elective share is limited to those assets specifically enumerated in § 633.238(1) and cannot be judicially expanded.


At the time of Karen Myer’s death, she owned a number of assets, which were valued at $479,989.29. Included in those assets were a checking account and certificate of deposit at the First Federal Savings Bank valued at $91,085.71 and an annuity with River Resource Funds valued at $18,978.80. All three of these assets were accompanied by beneficiary designations that made them payable on death (POD) to Karen's daughters. Karen’s husband, Howard Myers, filed for an elective share; the right to such share was subsequently assigned to the heirs of DeLillian Peterson, the Ramona Russell Trust, and the Helen B. Anderson Trust. Thereafter, the assignees filed an application to set off the surviving spouse’s share. The assignees requested that the probate court determine whether the checking account, certificate of deposit, and annuity should be included in Howard's elective share. Relying on the Iowa Supreme Court decision in Sieh v. Sieh, 713 N.W.2d 194, 198 (Iowa 2006), the probate court emphasized that because Karen retained control over the POD assets before her death, these assets, like the assets of a revocable trust, should be included in the husband's elective share. Rex Picken, Karen's brother and the executor of her estate, sought review.


Were pay-on-death (POD) assets included as a surviving spouse’s elective share, as defined in Iowa Code section 633.238?




The Court held that based on the language of Iowa Code § 633.238 (Supp. 2009), POD assets were not included in the surviving spouse's elective share. The Court noted that the legislature had amended § 633.238 to specifically provide that the assets of a revocable trust were included in the elective share. By listing the specific assets that were included, and not mentioning POD assets or other non-probate assets, the legislature intended that the POD assets not be included in the spouse's elective share. According to the Court, arguments regarding a deceased spouse's ability to defeat the elective share statute by using such assets should be directed to the legislature.

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