Death of the Right to Renounce
May 9, 2017 § 2 Comments
In February, 1966, J.B. Ratliff executed a will that left his wife, Mavis, a life estate in an undivided one-half interest in his property, and bequeathed the residuary to a daughter by a prior marriage.
On October 2, 1966, J.B. shot Mavis in the head and then shot himself in the head. He died instantly, and Mavis died shortly thereafter.
Letters testamentary were issued in J.B.’s estate, and letters of administration were issued in Mavis’s estate. The administrator in Mavis’s estate sought court approval to file a renunciation in J.B.’s estate, which was granted. Following a hearing, the chancellor in J.B.’s estate denied the renunciation, and the administrator of Mavis’s estate appealed.
In Jenkins v. Borodofsky, 211 So.2d 874, 875 (Miss. 1968), the MSSC affirmed:
There is only one issue to be decided in this appeal. Does the personal representative of a deceased spouse have the right to renounce the will of a predeceased spouse under Mississippi Code 1942 Annotated section 668 (1956), or is the privilege one which must be invoked personally by the surviving spouse during her lifetime?
This issue has been before this Court on a prior occasion in the case of Estate of Mullins v. Estate of Mullins, 239 Miss. 751, 125 So.2d 93 (1960). In that case we said:
In short, the right of a beneficiary to accept or renounce provisions of a will is a personal privilege which must be exercised by him during his lifetime and may not, after his death, be undertaken by his personal representative, even where death occurs prior to the expiration of the statutory period for the election. (239 Miss. at 755, 125 So.2d at 95.)
That, then, would seem to be that, except that the high court, in a more courtly era (no pun intended), tried to soften the blow:
The excellent, skillfully written briefs of appellant merit commendation, but they do not justify our modifying the rule of law set out in Mississippi Code 1942 Annotated section 668 (1956). Such is a prerogative of the legislature only and therefore should not be exercised by the judiciary. Mississippi can do as Tennessee has done and through its legislature enact a statute which would permit that which appellant earnestly urges here. Tennessee’s statute permits an election after the survivor’s death, as discussed in 83 A.L.R.2d 1073 (1962):
As already indicated, the right of election in the surviving spouse is purely statutory and a particular statute may permit an election to be made after the survivor’s death.
The statute in question in Hamilton Nat. Bank vs. Haynes (1943) 180 Tenn. 247, 174 S.W.2d 39 empowered the county court, on application of the personal representative of the surviving spouse, to declare a ‘dissent from the will’ in the event of the death of such survivor before the period allowed for the dissent had expired. (83 A.L.R.2d at 1082.)
Statutes in derogation of common law must be strictly construed, as we well know, and probate is a wholly statutory creature. The court went on to address appellant’s equitable estoppel argument:
Equitable estoppel does not and cannot authorize the exercise of a personal right which terminates with the death of a spouse. Appellee concedes that had J. B. Ratliff lived he would have been estopped from inheriting from his wife’s estate under the provisions of Mississippi Code 1942 Annotated sections 479 and 672 (1956). Appellant, however, does not seek to estop J. B. Ratliff. It is his estate, or more specifically his only daughter, Mrs. Betty Jane Ratliff Burrell, whom appellant seeks to estop. Appellant seeks to have Mrs. Burrell vicariously suffer the penalties which her father would have suffered had he survived his wife after killing her. Certainly Mr. Ratliff’s daughter, Mrs. Burrell, is guilty of no acts which would authorize and allow an equitable estoppel of her.
The court winds up with a flourish, invoking Les Misérables and the exquisitely miserable Inspector Javert:
In conclusion, we agree with appellant that Inspector Javert’s devotion to an immutable and inexorable code of laws which categorically demanded and required punishment is not the basic concept of law in this state. In passing, it was Javert’s fanatical dedication to his adamant belief which ultimately caused his self-destruction. The enactment, modification or repeal of laws, wise or foolish, is a problem for the legislature of this state. This Court has no authority in this regard.
Voilà, mes amis. So, if the spouse wishes to renounce, he or she must do so him- or herself personally “within ninety (90) days after probate” per MCA 91-5-25, unless under some legal disability for which the time is extended. It is a personal right that dies with the one holding it, and it may not be exercised later by her estate.
An attorney in this area posed an interesting, closely-related, question: In an estate opened in the 1980’s, surviving wife timely filed a renunciation of her deceased spouse’s will that was never brought to hearing. Now the renouncing wife has died. Her renunciation was timely filed and the estate has never been closed. Did her right of renunciation die with her, or did her filing open the door for her estate now to pursue it? If it survived, are further proceedings now barred by laches?
The Better Chancery Practice Blog 
What are your thoughts on how this affects § 91-5-27 where no provision is made for a spouse in the will?
The section states in part
“In such case a renunciation of the will shall not be necessary, but the rights of the survivor shall be as if the will had contained a provision that was unsatisfactory and it had been renounced.”
I read this to mean that if there had been no provision at all for the spouse in the referenced case that the result would have been entirely different.
I think you’re right. Where no provision at all was made, there is no requirement to renounce, so there is no privilege to die with her. Good point.