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In re Estate of Gadash

Court of Appeals of Colorado, Fifth Division

April 20, 2017

In re the Estate of Paul J. Gadash, deceased.
v.
Estate of Paul J. Gadash by and through its Personal Representative, Linda Rose, Appellee. Lorella Gadash, Petitioner-Appellant,

         Prowers County District Court No. 15PR30000 Honorable Douglas A. Tallman, Judge Honorable M. Jon Kolomitz, Judge

          Mark S. Davis, Lamar, Colorado, for Petitioner-Appellant

          The Law Offices of David S. Anderson, David Anderson, Greeley, Colorado, for Appellee

          OPINION

          ROMÁN JUDGE

         ¶ 1 In this probate action, Lorella Gadash (Mrs. Gadash) appeals the probate court's orders barring her creditor's claim for services rendered to her husband, Paul J. Gadash (Mr. Gadash), and denying her petition for spouse's elective share in favor of the Estate of Paul J. Gadash, by and through its personal representative, Linda Rose. We conclude that (1) Mrs. Gadash failed to timely appeal the final order barring her creditor's claim, and (2) the probate court properly considered Mr. and Mrs. Gadash's second marital agreement in denying Mrs. Gadash's petition for spouse's elective share. Accordingly, we dismiss the appeal in part and affirm the order of the probate court.

         I. Background

         ¶ 2 The day before their 1975 wedding, Mr. and Mrs. Gadash executed an antenuptial agreement (the first marital agreement). Under the terms of the first marital agreement, each spouse waived any right to the other's pre-marital property. Specifically, Mr. Gadash owned two commercial properties in Kansas.

         ¶ 3 During their first year of marriage, Mr. and Mrs. Gadash jointly acquired a hotel. In 1978, they entered into a second marital agreement. Under the second marital agreement, Mrs. Gadash waived her right to an elective share of Mr. Gadash's estate and any benefit that would pass to her from it. Mr. Gadash also waived the right to an elective share of one-half of Mrs. Gadash's estate, but only as to property given to Mrs. Gadash by her parents.[1]

         ¶ 4 After the second marital agreement, Mr. Gadash liquidated his Kansas properties, and he and Mrs. Gadash jointly acquired a horse property, lots adjacent to their hotel property, and a residential property. Mr. Gadash also separately bought and sold a different motel. Mrs. Gadash received a home from her parents.

         ¶ 5 In 2001, Mr. and Mrs. Gadash entered into a third marital agreement. In this agreement, they mutually waived rights to certain real property listed in two exhibits attached to the agreement. Of note, the third marital agreement specifically incorporated the terms of the first marital agreement but was silent as to the second marital agreement.

         ¶ 6 After the third marital agreement, Mr. and Mrs. Gadash re- allocated the properties held by each of them. Mr. Gadash conveyed the lots adjacent to the hotel to Mrs. Gadash and purchased three additional commercial properties. Mrs. Gadash conveyed the jointly held residential property and hotel to Mr. Gadash and retained the residential property given to her by her parents.

         ¶ 7 In 2008, Mr. Gadash executed his last will and testament. In it, he left all of his probate estate to his daughter, who is also the personal representative of the estate. He also left a $2000 gift to Mrs. Gadash. Mrs. Gadash executed a will in 2014, leaving none of her probate estate to Mr. Gadash.

         ¶ 8 On December 31, 2014, Mr. Gadash died and his will was admitted into probate in an unsupervised administration of estate, meaning "only the barest minimum of procedure is required and no hearings are held, unless warranted." 24 Catherine Anne Seal, Colorado Practice Series, Elder Law § 16:2, Westlaw (database updated Nov. 2016).

         ¶ 9 On March 4, 2015, Mrs. Gadash filed a petition for spouse's elective share of Mr. Gadash's estate. The petition was filed under the case number governing the administration of Mr. Gadash's estate. Notwithstanding the terms of the will, in her petition, Mrs. Gadash argued that because Mr. Gadash's will provided no gift to Mrs. Gadash, under section 15-11-202, C.R.S. 2016, she was entitled to elect an amount equal to fifty percent of the value of the marital property portion of Mr. Gadash's estate. She further alleged that the second marital agreement was not controlling over Mr. Gadash's estate.

         ¶ 10 On the same day, Mrs. Gadash separately filed a creditor's claim against the personal representative, in which she sought compensation for end-of-life services. In her creditor's claim, Mrs. Gadash argued that she should be compensated out of Mr. Gadash's estate for providing twenty-four-hour-a-day care to Mr. Gadash for the year and a half preceding his death. Mrs. Gadash's creditor's claim did not reference the petition for spouse's elective share. It did, however, acknowledge the existence of marital agreements precluding her from taking under the estate of Mr. Gadash.

         ¶ 11 On September 24, 2015, the probate court ruled that Mrs. Gadash's creditor's claim was barred for failure to protest the personal representative's notice of disallowance before the statutory deadline. Separately, on January 19, 2016, the probate court denied Mrs. Gadash's petition for spouse's elective share.

         ¶ 12 On March 4, 2016, Mrs. Gadash filed a notice of appeal, challenging the probate court's rulings against her on both the creditor's claim and petition for spouse's elective share.

         II. Discussion

         ¶ 13 We first address Mrs. Gadash's creditor's claim; then, we turn to the petition for spouse's elective share.

         A. Creditor's Claim

         ¶ 14 The personal representative contends that the probate court's order barring Mrs. Gadash's creditor's claim was a final order, which Mrs. Gadash failed to timely appeal. Mrs. Gadash asserts that the order barring her creditor's claim did not become final until the probate court ruled on her petition for spouse's elective share, and, thus, her appeal was timely. Because we conclude that Mrs. Gadash's creditor's claim was governed by a proceeding independent of her petition for spouse's elective share, we agree with the personal representative.[2] Accordingly, we lack jurisdiction to consider the probate court's order barring Mrs. Gadash's creditor's claim.

         1. Standards

         ¶ 15 The existence of subject matter jurisdiction is a question of law that we review de novo. City of Boulder v. Pub. Serv. Co. of Colo., 996 P.2d 198, 203 (Colo.App. 1999).

         ¶ 16 "The timely filing of a notice of appeal is a jurisdictional prerequisite to appellate review." In re Marriage of Farr, 228 P.3d 267, 268 (Colo.App. 2010) (citation omitted). The notice of appeal must be filed within ...


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