Effects of Marriage and Divorce on Wills

love-3581038_1920People do crazy things when they are in love, but if they fall out of love, these same people generally want out of any arrangements that they made while under the influence (of love).  On the other end of the spectrum, sometimes spouses get wrapped up in the newness of marriage, and they forget to change their estate planning documents to account for their new spouse.  Florida law has solutions for both of these scenarios, though a recent case illustrated a wrinkle in the solutions.

Although the subsequent marriage of an individual doesn’t revoke a prior will, a pretermitted spouse (that is, a spouse left out of a will made prior to the marriage), may inherit as if the spouse died intestate under Fla. Stat. § 732.301.[1]  This provides protection to a new spouse if a new will is not executed immediately after marriage.

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Conversely,  any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage.[2]  In practice, this means that after divorce, dissolution, or annulment of a marriage, the last will and testament of the decedent will be administered as if their ex-spouse had predeceased them—unless the will or the dissolution or divorce judgment expressly provides otherwise.[3]  It is important to note that this rule applies only to the ex-spouse.  If provisions were made for any of their family members (e.g., step-children), those provisions will remain valid upon divorce.

What happens, however, if the will providing for the surviving spouse was executed prior to the marriage?  This was precisely the question faced by the Second DCA in the 2018 case of Gordon v. Fishman.[4]

The court in Gordon found that, “[t]he legislature’s use of the adjective ‘married’ to modify ‘person’ is a clear indication that it intended the ‘person’ executing the will to be ‘married’ at the time of execution.”[5]  Thus, Fla. Stat.§ 732.507(2) “applies only when the marriage predates the will.”[6]

Further, the Gordon decision made it clear that no matter how far in advance of the marriage the will was executed, even just hours before, a non-married person’s will is not effected by subsequent divorce.  Arguments that the decedent “clearly executed his will in contemplation of divorce” were met with deaf ears by the Second DCA, and the Gordon court found that the statute regarding pretermitted spouses (Fla. Stat. § 732.301) is “clearly distinguishable” and should be “independently construed” in relation to the statute on the effect of divorce on wills.[7]

In Gordon, the decedent’s elderly father (through his guardian) argued that the ex-wife was not entitled to the inheritance because “the entire purpose” of Fla. Stat. § 732.502(2) “is to protect divorced persons from their inattention to estate planning details.”[8]  Even so, the courts which have so held have likewise noted that it is the intent to mitigate “animosities [that] arise in divorce proceedings which are inconsistent with wills executed when everything was rosy in the marriage.”[9]

So, while the Florida legislature has provided some protection for new spouses or divorced spouses, it is always in your best interest to update your will upon any major life event, such as a marriage or divorce, to ensure that your wishes will be carried out.

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Footnotes:

[1] Fla. Stat. § 732.701(1).

[2] Fla. Stat. § 732.507(2).

[3] Id.

[4] 253 So.3d 1218, 1220 (Fla. 2d DCA 2018).

[5] Id. at 1220.

[6] Id. at 1220-21.

[7] Id. at 1221.

[8] Id. (citing Carroll v. Israelson, 169 So.3d 239, 242-43 (Fla. 4th DCA 2015)).

[9] Carroll, 169 So.3d at 242-43.

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