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Ernie Banks Estate, Part 6: Surviving Spouse’s Award

Elizabeth Banks

This is the sixth in my series on various legal aspects of the Estate of Ernie Banks. You can read my first five installments here.

First, and before I completely bury the lead, news broke just yesterday that Elizabeth Banks filed the anticipated Will (and Trust) Contest on July 24. You can read about a number of the details from the filing in this Chicago Tribune article by Jason Meisner. I have seen the filing and it is definitely interesting.

I’m planning to write an introduction to will and trust contests next month (a topic I’ve yet to highlight on the blog) — basically the who/what/when/where/why/how of contests. And then I’ll follow that up separately with some thoughts on the Banks contest filing.

On to today’s topic…

If you’ve followed along over the past five months, you may have noticed that even typically noncontroversial issues have been sources of early battles in this estate. The disposition of Banks’ remains, document discovery and creditor claims have all proved contentious. So I suppose it should come as no surprise that even a typically routine application for a surviving spouse’s award is a subject of dispute.

Illinois Probate Surviving Spouse’s Awards

Article XV of The Illinois Probate Act provides that a surviving spouse is entitled to an “award” from the deceased spouse’s probate estate, exempt from the estate’s creditors, in an amount that “…the court deems reasonable for the proper support of the surviving spouse for the period of 9 months after the death of the decedent in a manner suited to the condition in life of the surviving spouse and to the condition of the estate.”

755 ILCS 5/15-1(a) further provides that “[T]he award may in no case be less than $20,000…”

The spouse’s award is a ‘second-class’ claim against the estate (more on claims here). Subject to sufficient probate assets to satisfy first-class probate claims, under the language of the Probate Act, a spouse’s award (minimum $20,000) is automatic except in one situation — when the decedent’s will expressly provides that the provisions in the will are in lieu of any award (and that will is not renounced by the surviving spouse).

This exception does not apply here because Banks’ Will does not provide that the provisions in the will are in lieu of an award — because there are no provisions in the Will for Elizabeth Banks. As for filing for “renunciation” of the Will, Elizabeth may do this eventually (and she has 7 months from February 9th to do so — perhaps a topic for a future blog), but it won’t affect her entitlement to a spouse’s award.

Rice’s Objections to Application for Spouse’s Award

As I noted in last month’s post, on May 20 Elizabeth Banks filed the Application for Spouse’s Award, requesting only the minimum award of $20,000. Elizabeth could have petitioned the court for a larger award based on “proper support” allegations, but she didn’t.

Yet, on June 22, Regina Rice (in her capacity as executor) objected to the allowance of any spouse’s award for Elizabeth Banks. Rice made three separate arguments in her objections to the award:

1. Public policy objection. Rice first argues that “under the circumstances, Mrs. Banks is not entitled to a spousal award.” Rice detailed the fact that Ernie and Elizabeth were estranged for several years and that their divorce had been imminent when Ernie died. Rice also repeated allegations in the divorce proceedings that Elizabeth had engaged in “extreme and repeated acts of mental cruelty” and that Ernie had demanded in 2013 that she cease and desist using his name. Rice then asserts that, while no court has addressed a spousal award under these circumstances, the policy behind the statute was not intended for spouse’s “in name only” and that public policy does not support an award under these facts.

2. Consideration of non-probate assets. Rice then argues that the court should consider that Elizabeth Banks received non-probate assets, such as social security and pension benefits. Rice asks for a “full accounting” of these non-probate assets, and suggests that these benefits should mitigate or negate the spouse’s award.

3. Premature due to 1st-Class Claims. Finally, Rice argues that a $20,000 award would be premature because there might not be enough estate assets to satisfy the award after paying 1st-class claims. Rice asserts that the award would “hinder” the payment of 1st-class claims, including attorneys’ fees, which Rice claims may exceed the value of the probate estate. Rice also suggests that a portion of the attorney’s fees have been caused by Elizabeth Banks’ litigation against the estate (such as the citation proceedings).

On July 9, Elizabeth Banks’ attorneys filed a Reply in Support of the spouse’s award.  Elizabeth notes that Rice does not deny that they were married at the time of Ernie’s death and does not argue any type of waiver of the award. She furthers argues that the minimum award is automatic and non-discretionary.

My comment: this is correct. While there are some other states that have limited exceptions (e.g. for estrangement, abandonment or non-probate assets), under the Illinois statute the minimum award is non-discretionary regardless of any estrangement or other factors. A probate judge is not going to write exceptions into the statute where none exist. This is for the legislature to address.

It appears that the court’s consideration of the spouse’s award application was continued, along with other matters, to August 6. I’ll update this in a future blog.

Selection of Goods and Chattels

There is another interesting — and perhaps little-known — provision with respect to payment of a spouse’s award. The statute (755 ILCS 5/15-4(a)) permits the surviving spouse to elect to accept payment of the spouse’s award either in cash or in “goods and chattels “(i.e. tangible personal property) that are not otherwise specifically bequeathed, at their appraised value.

To make this election, the spouse must file a written selection with the court within 30 days after (notice of) the allowance of the award.

Might Elizabeth consider making a goods and chattels election? We know that there are substantial pieces of memorabilia in the estate, although I haven’t seen an appraisal. The latest Inventory filed with the court simply asserted that the estimated value of the probate estate is $16,000.

Of course this issue could become moot if the contests are ultimately successful. This will take some time to sort through. The next hearing is scheduled for August 6.

Prior to the will contest filing, Rice had filed a motion asking for a settlement conference. We’ll have to see how the latest filing effects that posturing. I’ll keep readers updated.

And finally, how about Kris Bryant channeling Ernie Banks last night with 2 outs in the 9th? Go Cubs!

UPDATE: On August 6th, Judge Riley approved the minimum $20,000 spouse’s award. “I’ll tell you exactly what the appeals court would say if I denied it,” the judge said. “They’d say, ‘Hey, what’s wrong with Riley?'”