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Impact of Divorce on Last Will and Testament

Published: July 15th, 2015

By: Brad Gould Dana M. Apfelbaum

Sometimes courts are faced with the difficult task of interpreting the law under unanticipated facts and circumstances.  This was the case in Carroll v. Israelson, No.4D13-4532, 2015 WL 3999486 (Fla. 4th DCA July 1, 2015), concerning the Last Will and Testament of a recently divorced decedent, Thomas Carroll.

Years before his divorce, Thomas executed a Will that devised his entire estate to his then wife, Wendy, or if Wendy was not living, to the trustees of a trust for Wendy’s niece and nephew which would have been created under Wendy’s revocable trust at her death (the “Wendy Family Trust”).  Thomas died approximately a month after the entry of the final judgment of dissolution and had not changed his estate planning documents to reflect his divorce.

Unfortunately, it is not uncommon for people to fail to update estate planning documents in light of divorce.  Accordingly, Florida law steps in to provide that any Will provision which “affects the spouse” of a divorced decedent is void upon dissolution or annulment and the spouse is treated as having died as of the date of dissolution or annulment.  Fla. Stat. § 732.507(2).  The court applied this statute to determine that the contingent bequest to the Wendy Family Trust affected Wendy under the statute, as she was actually alive and able to modify her revocable trust, and was therefore void.  With the dispositive provisions of his Will invalidated, Thomas was intestate and his entire estate passed to his mother.

The outcome of this case is likely consistent with the intent of the statute and probably also the intent of Thomas Carroll, although his intent was not at issue thanks to the statute.  The court’s application of the law, however, is based on a strained interpretation of the statute which requires that you simultaneously buy into the legal fiction that the ex-spouse is deceased with regard to the primary bequest and disregard the legal fiction when analyzing the contingent bequest.  Practitioners must be aware of this statute and its application by the court and urge their clients to think ahead in divorce situations to implement a new estate plan immediately after a divorce is final.