Parent and Child: Children claim right to property over second wife

Where father and wife had agreed to divide certain property as part of their divorce, but had not executed the property settlement agreement when father died, the property settlement agreement could not be enforced by the father’s children via a constructive trust or equitable estoppel.

Background     

This case concerns a dispute over title to real property and certain retirement accounts. William Fisher and Daniel Fisher—both of whom are the sons of the late Daniel E. Fisher from a previous marriage—appeal from the order of the circuit court dismissing their counterclaim and granting summary judgment for Elizabeth J. Smith. Fisher died after he and wife agreed to divorce and while they were finalizing their property settlement agreement, or PSA.

The Fishers argue that equitable estoppel required the circuit court to impose a constructive trust over husband and wife’s marital residence and over husband’s retirement accounts following his death. They also argue that entering summary judgment for wife and quieting title to the marital residence in wife’s favor were inappropriate because the Fisher sons allege that a material fact remained genuinely in dispute.

Constructive trust

Although the Fishers do not contest the lack of an enforceable marital agreement and maintain that they are not trying to enforce the terms of such an agreement, they nevertheless contend that the PSA drafts evidence husband and wife’s assent to how the marital residence and husband’s retirement accounts should be divided.

They argue that the circuit court should have imposed a constructive trust over the marital residence and husband’s retirement accounts—and that the circuit court should have found that wife was estopped from claiming entitlement to the entire interest in the marital home and husband’s retirement accounts.

The Fishers can only assert equitable estoppel here if they reasonably relied on wife’s promises and if they changed their position to their detriment. However, the Fishers did not make such a claim. Rather, they argue that husband relied on wife’s assent to equally divide the marital shares of the residence and husband’s retirement accounts and that husband changed his own position by agreeing to cancel the divorce hearing and to remove it from the circuit court’s docket.

Indeed, the Fishers (not husband) are the ones demanding equitable estoppel. However, the Supreme Court has made clear, “The doctrine of equitable estoppel is not available unless the party advancing the claim can show that he has acted in reliance upon an action or statement of the party he seeks to bind.”

Although the Fishers allege a detriment from the decreased inheritance assets, they simply failed to plead any acts that they took in reliance on wife’s anticipated PSA with husband. Therefore, under these circumstances, the circuit court did not err in finding that the Fishers failed to state a valid equitable estoppel claim.

Even if equitable estoppel did apply in this case, imposing a constructive trust, however, would not have been appropriate. Imposing the Fishers’ proposed constructive trust would “breathe life” into an unsigned and unenforceable marital agreement that the General Assembly clearly “intended to have no life.” Therefore, for all of these reasons, the circuit court did not err in sustaining wife’s demurrer and in dismissing the Fishers’ counterclaim.

Summary judgment

When husband died, he and wife were still legally married, so full ownership of the marital residence passed to wife by operation of law. Thus, the circuit court did not err in granting wife’s motion for summary judgment on her petition to quiet title because she was entitled by law to sole and equitable title to the marital residence.

To the extent that the Fishers contend that wife’s alleged delay in executing the PSA was a material fact that remained genuinely in dispute, there is no statutory authority or case law supporting the Fishers’ claim that a delay in executing a marital agreement defeats the ownership interest of the surviving tenant by the entirety with rights of survivorship when one tenant dies.

Furthermore, Code § 20-155 does not transform a draft marital agreement into a final, enforceable marital agreement because of one spouse’s alleged delay in executing that agreement. Thus, for all of these reasons and given that there were no material facts genuinely in dispute, the circuit court did not err in granting summary judgment for wife.

Affirmed.

Fisher v. Smith, Record No. 1533-24-2, Sept. 16, 2025. CAV (unpublished opinion) (Beales). From the Circuit Court of the City of Richmond (Cardwell). Jack R. Corkery (John H. Taylor; FloranceGordonBrown, P.C., on brief), for appellants. Benjamin P. Kyber (Kevin W. Mottley; The Mottley Law Firm PLC, on brief), for appellee. VLW 025-7-258. 12 pp.