Filed 7/11/17 Estate of Cisneros CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE


Estate of MANUEL A. CISNEROS, Deceased.

ROSALINA CONTRERAS-CISNEROS,
Petitioner and Appellant,
v.
LEOMA CISNEROS-SAENZ et al.,
Objectors and Respondents.


A146735

(Alameda County
Super. Ct. No. RP15-754757)

Petitioner Rosalina Contreras-Cisneros was married to Manuel A. Cisneros at the time of his death. Decedent’s assets were held in a trust that predated his marriage to Rosalina and was never amended to include her. Following his death, she asserted an interest in the trust’s assets and filed a petition in the probate court seeking to be designated as an omitted spouse under Probate Code section 21610. The probate court concluded she was not entitled to a share of the trust’s assets as an omitted spouse because the language of the trust specifically excluded her under section 21611, subdivision (a). Rosalina has appealed from the court’s order. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On April 13, 2003, decedent executed a declaration of trust for the Manuel A. Cisneros Trust (Trust) designating himself as the trustor and naming his four children as beneficiaries, including his daughter Leoma Cisneros-Saenz, who is the successor trustee. At the time the Trust was created, decedent was widowed and was 76 years old.
Section 2.3 of the Trust is captioned, “Death of Trustor with No Surviving Spouse,” and states: “On the death of the Trustor, if Trustor is not married at the time of his death, the Trustee shall distribute to the Primary Beneficiary Trust the residue of the Trustor Lifetime Trust, after any special distributions have been made.” Section 2.4 of the Trust is captioned, “Death of Trustor with Surviving Spouse,” and states: “On the death of the Trustor, if Trustor is married, the Trustee shall distribute the Trust property remaining in the Trustor Lifetime Trust after the surviving spouse takes his/her share of community property . . . .” (Italics added.)
Decedent married Rosalina on June 3, 2013. The Trust was never amended to include her as a beneficiary. Decedent passed away on August 3, 2014.
On January 15, 2015, Rosalina filed a petition in probate court for orders declaring her to be an omitted spouse and granting her an entitlement to a one-third interest in the Trust’s assets.
On February 18, 2015, Leoma filed a petition for orders affecting the administration of the Trust. The petition noted Rosalina was seeking status as an omitted spouse and sought instructions from the probate court regarding whether Rosalina was entitled to a share of decedent’s Trust estate.
A hearing on both petitions was held on September 14, 2015. No reporter’s transcript of this hearing has been provided on appeal. On that same date, the probate court issued its order following the hearing: “Applying the standard used in [Estate of Duke (1953) 41 Cal.2d 509 (Duke) and Estate of Katleman (1993) 13 Cal.App.4th 51 (Katleman)], the court finds that the settlor did contemplate the possibility of a later marriage as he provided for a distribution method in his trust instrument in the event of his marriage. The court also finds that the settlor intended to disinherit his subsequently married wife and only confirm to her, her share of community property.” This appeal followed.
DISCUSSION
I. Standard of Review
Interpretation of a trust instrument presents a question of law subject to de novo review, unless interpretation turns on the credibility of extrinsic evidence or a conflict therein. (Burch v. George (1994) 7 Cal.4th 246, 254.) For the purposes of this appeal, the parties did not dispute the critical facts. Accordingly, this appeal is governed by the de novo standard of review.
II. Rosalina Was Intentionally Omitted
Under section 21610, subdivision (c), if a decedent fails to provide for the decedent’s surviving spouse who married the decedent after the execution of a testamentary instrument, the omitted spouse shall receive a prescribed share of the decedent’s estate. However, section 21611, subdivision (a) provides that a spouse shall not receive a share of the estate under section 21610 if “[t]he decedent’s failure to provide for the spouse in the decedent’s testamentary instruments was intentional and that intention appears from the testamentary instruments.”
Rosalinda contends that the Trust “does not show any intention to disinherit an after-acquired spouse . . . .” She attempts to distinguish this case from Duke, supra, 41 Cal.2d 509, on the basis that the Trust “lacks an exclusionary, disinheritance, or no contest clause.” She argues the Duke decision was based on an “effective disinheritance clause” (italics added), asserting the clause addressed in that case is legally distinguishable from section 2.4 of the Trust.
In Duke, a disinheritance clause that excluded “ ‘any person or persons who may, after the date of this will, become my heir or heirs by reason of marriage or otherwise’ ” was found adequate to overcome the pretermission rights of the testatrix’s subsequently acquired spouse. (Duke, supra, 41 Cal.2d at p. 514.) The Supreme Court in Duke concluded this provision “clearly stated an intention not to provide for a class of persons which necessarily would include a future spouse.” (Ibid.) Even though the clause did not show that the testatrix had in mind marriage to a particular person, the clause was deemed sufficient to avoid a revocation of the will. (Ibid.) While section 2.4 is not identical to the clause at issue in Duke, its effect is the same because it references the possibility of a future marriage and limits a future spouse to that spouse’s share of community property only.
In Katleman, supra, 13 Cal.App.4th at p. 60, exclusionary language was deemed insufficient to exclude an omitted spouse. The claim in that case was asserted by the decedent’s wife. A year after the decedent divorced her, he executed a will containing the following disinheritance clause: “ ‘If any devisee, legatee or beneficiary under this Will, or any legal heir of mine or person claiming under any of them, shall contest this Will or attack or seek to impair or invalidate any of its provisions, in that event I specifically disinherit each such person, and all legacies, bequests, devises and interests given under this Will to such person shall be revoked and such person shall receive nothing from my estate, and the provisions of this Will shall be carried out as though such person had predeceased me leaving no issue.’ ” (Id. at p. 57.) Five years later, the decedent remarried his wife. The couple remained married until the decedent’s death. The decedent never revoked his 1976 will. (Id. at pp. 56–57.)
The Katleman court stated: “In order for a testator to disinherit an heir who might otherwise assert a pretermission claim . . . the intent to disinherit such heir must appear ‘in strong and convincing language’ on the face of the will. [Citations.] If a testator expresses an intent to disinherit his or her ‘heirs,’ ‘legal heirs,’ ‘relatives’ and the like, such language is generally found sufficient to disinherit . . . a surviving spouse who was then married to the testator. [Citations.] [¶] However, a testator’s intention to disinherit his ‘heirs’ or ‘legal heirs’ is determined as of the date of execution of the will. A person who was not then an heir or legal heir, and whose subsequent relationship was not yet known or contemplated, could not then have been considered by the testator to be such. Thus, such a person is not considered in law to be included in the mere term ‘heir,’ or ‘legal heir’ used in a disinheritance clause. [Citations.] Although broad enough to include a present spouse, such terms are not sufficient to show an intent to disinherit a subsequently acquired spouse, unless the will’s language clearly demonstrates that the testator contemplated the possibility of a later marriage.” (Katleman, supra, 13 Cal.App.4th at p. 60.) Absent such an “express and unambiguous intent to exclude a future spouse, a disinheritance clause will not overcome the claims of one who married the testator after execution of the will.” (Id. at p. 61.)
Rosalinda stresses that under Katleman, supra, 13 Cal.App.4th 51, the intent to disinherit must appear in “strong and convincing language.” We find section 2.4 of the Trust to be both strong and convincing. The section clearly indicates that decedent contemplated a future marriage and the effect that such a future marriage would have upon the distribution of the Trust’s assets. Again, section 2.4 states: “On the death of the Trustor, if Trustor is married, the Trustee shall distribute the Trust property remaining in the Trustor Lifetime Trust after the surviving spouse takes his/her share of community property . . . .” (Italics added.) Unlike the testamentary language at issue in Katleman, the language of the Trust explicitly mentions the notion of remarriage. It also states decedent’s exact intentions with respect to his future spouse’s entitlement, namely, that—apart from her share of the community property, if any —his property would be distributed to his children under the terms of the Trust.
DISPOSITION
The order is affirmed.


_________________________
Dondero, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Banke, J.