Master Recommends Dismissal of Surviving Husband’s Elective Share Petition on the Basis of Untimeliness

IMO Estate of Joan K. Lambeth; Jack Reedy v. Larry H. Kendall, C.A. No. 2017-0918-MTZ (July 2, 2018)

          Title 12, Section 906 of the Delaware Code allows a surviving spouse to file for an elective share within six months of the appointment of the personal representative. In this case, the petitioner failed to do that in a timely matter (filing seven months after that occurred) but petitioner argued that the six-month deadline should be relaxed in this case. The petitioner alleged that the personal representative had informed him that nothing could be done regarding the estate until eight months had passed after the decedent’s death. When petitioner filed the petition, eight months exactly had passed since decedent’s death. Petitioner and decedent were married for a little less than three years at the time of decedent’s 2017 death.

          The Master noted that the deadlines for seeking an elective share and an extension for the same are strictly enforced. Given that, she concluded that she could not read Section 906 leniently. The Master also concluded that the Petitioner could not prevail on theories of fraudulent concealment or equitable tolling. Further, the Master noted that Section 906 is quite possibly a statute of repose rather than a statute of limitations. Statutes of repose are not subject to equitable tolling doctrines. And even if it were a statute of limitations, the Master found that the petitioner had not adequately pleaded any equitable tolling doctrine. In short, petitioner had failed to plead fraudulent concealment with the required particularity. See Ct. Ch. R. 9(b). Likewise, regarding his equitable tolling claim, the Master held that the petitioner failed to plead the required elements of when he learned of the false statement, when he had notice that it was possibly false, and what he did to protect his rights. Further, the Master noted that the petitioner could have easily learned of the true nature of his statutory rights by way of a simple and prompt inquiry to counsel.