Divorce…Don’t Forget to Change Your Estate Planning Documents!

The divorce process is a very stressful time, so it is understandable if revisions of estate planning documents are not considered and “fall between the cracks”. Fortunately   Sections 732.507(2) (for wills), 736.1105 (for trusts), and 732.703 (beneficiary designations of certain assets) of the Florida Statutes provide help when the decedent does NOT want  to benefit the ex-spouse. However, there are still instances which can create litigation. An example is the following recent case.

In Carroll v. Israelson, Tom Carroll passed away with no children. His will provided for his wife, Wendy. Upon Wendy’s death, or his death if he survived Wendy, his assets would be distributed to Wendy’s Family trust created under Wendy’s Revocable Trust. Wendy’s niece and nephew are the beneficiaries of Wendy’s Family Trust.

Prior to Tom’s death, in 2012, Tom and Wendy divorced. The marital settlement agreement provided that Wendy retain all of the assets held in her revocable trust and the marital home. Tom received all accounts in his name, together with other payments. Tom and Wendy waived any rights to each other’s estate.

Tom’s mother, Helen, was Tom’s sole intestate heir. Tom had not changed his documents after the divorce. Even though Section 732.507(2) of the Florida Statutes provides that the divorce makes any distributions to an ex-spouse void, Wendy argued that the Tom’s devise to her Family Trust was valid and that Tom intended that Wendy’s niece and nephew should benefit from the distribution of Tom’s assets to Wendy’s Family Trust.

Helen argued that Wendy’s revocable trust was in existence at the time of Tom’s death; the Family Trust was not even in existence at Tom’s death and pursuant to Section 732.507(2) of the Florida Statutes, Wendy was deemed to have predeceased Tom and that Helen should inherit by intestacy.

The lower court engaged a “legal fiction” that, because Wendy was “deemed” to have predeceased Tom pursuant to Section 732.507(2) of the Florida Statutes, the Family Trust was created to benefit Wendy’s niece and nephew.

The appellate court determined that Section 732.507(2) of the Florida Statutes provides that ANY provision of a will executed by a married person that AFFECTS the spouse of that person shall become void upon divorce. The court determined that to “affect” a spouse does not mean it has to have a direct pecuniary benefit. If the provision is void it is a nullity. Thus, because Wendy was alive on the date of dissolution, ALL provisions relating to Wendy were void.

The appellate court opined “[t]e circuit court used the fiction of Wendy’s death to green light the rewriting of Wendy’s trust documents after Tom’s death. However, Section 732.507(2) becomes operative on the date of dissolution, so it does not allow for such post-death legal gymnastics to manipulate the issue of whether a will provision “affects” the former spouse”.

ADVICE: These “legal gymnastics” could have been avoided if Tom’s will had been changed. The cost of the codicil or a new will certainly would have been cheaper than this litigation. Any time you are headed toward a family lawyer for a divorce do not forget this part of the divorce. Family law attorneys remember to remind your clients to revise their estate planning documents and refer them to a qualified expert in this area.

New Word of the Week: Dictum.. The “dictum” of a case is generally an opinion or belief stated in a case that is not part of the doctrine of a legal decision but it is considered authoritative because of the Judge stating it.


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