Court of Appeals of Missouri, Western District, Special Division
from the Circuit Court of Carroll County, Missouri The
Honorable Kevin L. Walden, Judge
Before: Zel M. Fischer, Special Judge, Presiding, Cynthia L.
Martin, Judge and Gary D. Witt, Judge
Cynthia L. Martin, Judge
M. Heil ("Ms. Heil") appeals from the trial
court's June 30, 2015 judgment denying her election to
take a spousal share of decedent John David Heil's
("Decedent") estate as against the provisions of
Decedent's will. Ms. Heil claims that the trial court
erred because there was no evidence of marital misconduct to
support the denial of her claim. Because Ms. Heil abandoned
Decedent without reasonable cause as anticipated by section
474.140,  we find no error and affirm.
and Procedural Background
died on May 14, 2014. Decedent's will was admitted to
probate by Donald Heil ("Son"), the personal
representative named in the will. Decedent's will
expressed Decedent's intent to leave the entirety of his
estate to Son. After Decedent's will was admitted to
probate, Ms. Heil filed notice of election to take a spousal
share of Decedent's estate pursuant to section 474.160.
Son raised the affirmative defense of abandonment pursuant to
section 474.140. The trial court considered the pleadings and
evidence submitted by the parties, and entered its Findings
of Fact, Conclusions of Law and Judgment on June 30, 2015
("Judgment"). Ms. Heil concedes that the findings
of fact set forth in the Judgment are supported by the
evidence, and adopts the findings as her own.
[Appellant's Brief, p. 2]
Heil and Decedent were married on June 21, 1968. They lived
together in their marital home in Norborne, Missouri for many
years. In the 1990's, Decedent spent more and more time
at the residence of his parents on a farm outside of
Norborne, until he suffered a heart attack in 1997, after
which he returned to the marital home to rehabilitate.
prior to 1999, Decedent moved from the marital home back to
his parents' farm. After Decedent's mother's
death in 1999, Decedent became the owner of his parents'
farm, and refused to move back to the marital home.
effort to salvage their marriage, Ms. Heil moved from the
marital home to the farm in the summer of 1999. Decedent and
Ms. Heil did not enjoy a warm, loving, affectionate, or
supportive relationship. However, the trial court found that
Decedent's treatment of Ms. Heil did not rise to a level
that Ms. Heil could no longer reasonably be expected to live
fall of 2000, Ms. Heil voluntarily moved from the farm back
to the marital home. Ms. Heil's move was not requested by
Decedent, but Decedent acquiesced in the move.
and after the fall of 2000, Ms. Heil visited Decedent very
infrequently and primarily for business reasons or to bring
grandchildren to see Decedent. From and after the fall of
2000, neither Ms. Heil nor Decedent provided the other with
domestic, financial or emotional support. Ms. Heil did not
support or care for Decedent during his several illnesses,
which included a subsequent heart attack, Alzheimer's
disease, and prostate cancer. Eventually, Decedent fell and
broke his hip, requiring his admission into a nursing home.
Ms. Heil visited Decedent one or two times while he was in
the nursing home, and spent only a few minutes with him when
he was near death. When Son sought Ms. Heil's assistance
in caring for Decedent, Ms. Heil responded by giving Son a
phone number for a potential caregiver.
Decedent nor Ms. Heil took steps to terminate their marriage
or to legally separate. The trial court found that neither
Decedent nor Ms. Heil committed adultery or marital
misconduct. However, they lived separately and apart for
several years preceding Decedent's death. The trial court
found that for all intents and purposes, the marriage between
Decedent and Ms. Heil did not exist from and after the fall
of 2000, and that Ms. Heil made no attempts to pursue or
cultivate a marital relationship with Decedent. Based on
these facts, the trial court found that Ms. Heil intended to
abandon Decedent and the marital relationship. The Judgment
thus concluded that Ms. Heil was disqualified pursuant to
section 474.140 from electing to take her spousal share
against Decedent's will.
Heil appealed the June 30, 2015 Judgment to this court on
July 29, 2015. By Order dated December 15, 2015, we dismissed
Ms. Heil's appeal as untimely. We observed that the
Judgment, an interlocutory probate court order, was final
immediately upon its entry, and that Ms. Heil's
permissive right of appeal pursuant to section 472.160
required a notice of appeal to be filed within ten (10) days
of the Judgment's entry. However, though Ms. Heil's
permissive appeal was not timely filed, she remained entitled
to appeal the interlocutory Judgment following final
settlement of Decedent's estate. See In re
Kraus, 318 S.W.3d 274, 277 (Mo. App. W.D. 2010). The
trial court entered its order approving a final settlement of
Decedent's estate on May 9, 2017. Ms. Heil filed this
timely appeal from the Judgment on May 11, 2017.