138 P.3d 520 (Nev. 2006)
In 1987, California residents Maria and W.R. Prestie were married in Las Vegas, Nevada.1 Maria and W.R. were divorced two years later yet maintained an amiable relationship.2 W.R. was later diagnosed with macular degeneration and moved to Las Vegas, where he purchased a condominium.3 Maria also moved to Las Vegas, although she initially resided in a separate residence.4
In 1994, W.R. simultaneously executed in California a pour-over will and the W.R. Prestie Living Trust.5 The pour-over will devised W.R.’s entire estate to the trust.6 W.R.’s son, appellant Scott Prestie, was named both the trustee and a beneficiary of the inter vivos trust.7 Neither the will nor the inter vivos trust provided for Maria.8
As W.R.’s sight worsened, Maria provided care for W.R. by taking him to his doctor appointments, cooking, and cleaning his condominium.9 In 2000, Maria moved into W.R.’s condominium to better assist him with his needs.10 In 2001, W.R. amended the inter vivos trust to grant Maria a life estate in his condominium upon his death.11
A few weeks later, Maria and W.R. were married for a second time.12 W.R. passed away approximately nine months later.13
Maria eventually petitioned the district court for, among other things, a one-half intestate succession share of W.R.’s estate on the ground that W.R.’s will was revoked as to her under NRS 133.110.14 The probate commissioner found that W.R.’s will was executed before he remarried Maria in 2001 and that the amendment granting Maria a life estate in the condominium was to the inter vivos trust, not to W.R.’s will.15 The probate commissioner also concluded that, under NRS 133.110, W.R. and Maria did not have a marriage contract and W.R.’s will did not provide for Maria or express an intent to not provide for Maria.16 Therefore, the probate commissioner recommended that W.R.’s will be revoked as to Maria.17 The district court subsequently entered an order adopting the probate commissioner’s report and recommendations, and Scott Prestie appeals.18
Whether an amendment to an inter vivos trust can rebut the presumption that a pour-over will is revoked as to an unintentionally omitted spouse?19
NRS 133.110 provides that if a person marries after making a will and the spouse survives the maker, the will is revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless the spouse is provided for in the will, or in such a way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation shall be received.20 The statute is unambiguous, and the only evidence admissible to rebut the presumption of revocation is a marriage contract, a provision providing for the spouse in the will, or a provision in the will expressing an intent to not provide for the spouse.21
No. The plain language of NRS 133.110 dictates that an amendment to a trust is not admissible to rebut the presumption of a will's revocation.22 W.R. executed his will before remarrying Maria, and the amendment granting Maria a life estate was to the inter vivos trust, not the will.23 Scott concedes that there was no marriage contract, and it is undisputed that the will did not contain a provision providing for Maria or expressing an intent not to provide for her.24 Thus, none of the three limited exceptions contained in NRS 133.110 is present.25
An amendment to an inter vivos trust cannot serve to rebut the presumption that a will is revoked as to an unintentionally omitted spouse.26
Whether provisions referencing California law in a will and inter vivos trust require application of California law rather than Nevada law to the question of will revocation by marriage?27
Article Five, Section 3 of W.R.’s will states that “[W.R.’s] estate may be administered under the California Independent Administration of Estates Act.”28 Article Four, Section 7(d) of the inter vivos trust states that “[t]his Trust Agreement is a California contract and the validity of this Trust shall be determined by the laws of the State of California.”29 The California Independent Administration of Estates Act governs the probate process by permitting the appointment of a personal representative to administer a decedent’s estate with limited court supervision.30 The word “may” is permissive.31
No. The will reference to the California Independent Administration of Estates Act is permissive and concerns administration of the estate rather than choice of law for revocation.32 The trust reference to California law concerns only the validity of the trust, which is not at issue.33 Thus, W.R.’s will and estate are governed by Nevada law.34
Provisions referencing California law in a will and inter vivos trust do not require application of California law rather than Nevada law to the question of will revocation by marriage.35
Whether NRS Title 13 bars a claim as an unintentionally omitted spouse under NRS Title 12?36
NRS 164.005 states that when not otherwise inconsistent with the provisions of chapters 162 to 167, inclusive, of NRS, all of the provisions of chapters 132, 153 and 155 of NRS regulating the matters of estates apply to proceedings relating to trusts, as appropriate, or may be applied to supplement the provisions of chapters 162 to 167, inclusive, of NRS.37 The mention of one thing implies the exclusion of another.38
No. NRS 164.005 makes specific mention of NRS Chapters 132, 153, and 155, while making no mention of NRS Chapter 133.39 The revocation of a will under NRS 133.110 is unrelated to a trust proceeding.40 Nothing in NRS 164.005 or NRS Title 13 contemplates the application of trust amendments in satisfaction of NRS 133.110.41 Thus, NRS 164.005 has no bearing on the issue of whether W.R.’s will is revoked as to Maria pursuant to NRS 133.110.42
NRS Title 13 does not bar a claim as an unintentionally omitted spouse under NRS Title 12.43
Whether a surviving spouse who received a life estate under a trust amendment is equitably estopped from asserting rights as an unintentionally omitted spouse?44
Equitable estoppel functions to prevent the assertion of legal rights that in equity and good conscience should not be available due to a party’s conduct.45 Maria was granted a life estate in W.R.’s condominium under the amendment to the inter vivos trust.46 Maria sought an intestate share of W.R.’s estate on the basis that she was an unintentionally omitted spouse under W.R.’s will.47
No. The doctrine of equitable estoppel has no application because Maria's interest in the condominium pursuant to the trust agreement is independent of her claim as an unintentionally omitted spouse under W.R.’s will.48 Having a beneficial interest in the trust does not preclude Maria from also obtaining an interest under the will.49 Consequently, Maria’s entitlement under the inter vivos trust does not estop her from asserting her rights under the will.50
A surviving spouse who received a life estate under a trust amendment is not equitably estopped from asserting rights as an unintentionally omitted spouse.51