In Gordon v. Fishman, Husband signed a will benefiting his future wife, if living and if not then to her children. They later married and the will was not changed.
Husband and Wife (“Ex-Spouse”) divorced in 2013 and Husband died 2 years later with no spouse or children.
In April, 2015, Fishman, as guardian for Husband’s father, petitioned the court for letters of administration for an intestate estate, alleging that the will was either revoked or destroyed because of a premarital agreement and subsequent divorce. Fishman was appointed as personal representative. In August 2015, Ex-Spouse filed the will.
Fishman filed a petition to determine beneficiaries alleging that Ex-Spouse was deemed to have predeceased Husband under Florida law. Ex-Spouse argued Florida law did not apply because she was not married to Husband at the time Husband executed the will. The trial court agreed with Fishman and found that Fishman, as guardian of Husband’s father, and Ex-Spouse’s children were beneficiaries under Husband’s will.
On appeal to the Second District Court of Appeal (2nd DCA) Ex-Spouse argued that the plain language of the statute clearly indicates that the statute was not applicable. The relevant portion of the statute states that “[a]ny 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 of annulment of the marriage. … [T]he will shall be administered and construed as it the former spouse had died the the time of the dissolution, divorce, or annulment of the marriage…” (emphasis added). As Husband and Ex-Spouse were not married at the time of the execution of the will, the statute did not apply.
Fishman argued that the divorce decree and prenuptial agreement also forbid Ex-Spouse from inheriting from the estate. Unfortunately, while such documents were in evidence, apparently Fishman did not preserve the issue by raising the argument in the trial court and the trial court made no factual findings regarding such documents. Accordingly, the appellate court would not consider these arguments for the first time on appeal.
Fishman cited case law providing that, if a decedent makes a will in contemplation of marriage, a subsequent marriage does not permit a spouse to receive the benefit of an intestate share as a pretermitted spouse. The court stated that the “contemplation of marriage” language arose directly from common law and the laws applicable to pretermitted spouses are “inapposite” to the statute under review and the statutes “are to be independently construed”.
Fishman then argued that the statute’s purpose is to protect divorced persons from the inattention to details, i.e., changing a will after divorce. The court determined that the plain language of the statute does not lead to an unreasonable result contrary to the legislature’s intent.
The court concluded that the statute applies only when the Husband and Ex-Spouse are married when the will is executed and then there is a divorce. Because Husband and Ex-Spouse were NOT married at the time of execution of the will, the Ex-Spouse was deemed to have survived the Husband and Ex-Spouse was the beneficiary under the will.
ADVICE: While this author is surprised at this result, this case should only apply to only individuals who make a will prior to their marriage benefiting a future spouse. In this author’s experience, most clients do not create wills benefiting a future spouse until they actually become a spouse. However, as this case is the first case (to this author’s knowledge) interpreting this specific satutory language, the case has precedential value for practitioners. The Real Property, Probate and Trust Law Section of the Florida Bar will, more than likely, review this decision and hopefully amend the statutory language to conform to what most practitioners would agree as to statutory intent…that, no matter when a will was signed, if a married couple divorce, then the former spouse is deemed to have predeceased the spouse who made the will.
Note that this decision does NOT address the similar provision in the trust code which states, in part, “if a revocable trust is executed by a husband or wife as settlor”, and there is a divorce, then the spouse is deemed to have predeceased the settlor. Prior to marriage, neither party is a “husband” or “wife” so arguably this decision will also adversely affect this particular statute.
This decision also does not address the revocation of beneficiary upon divorce statute. However, that statute does not refer to a beneficiary designation made prior to or after marriage so it appears unlikely that this decision will affect that statute.
WORD OF THE WEEK: Precedent is a decided case that furnishes a basis for determining later cases involving similar facts and issues. If facts are not similar, then the principle which governs the first case must be applicable to the different facts. Binding precedent is precedent that a court MUST follow. In the case discussed in this blog, the lower courts in the 2nd DCA MUST follow this case. In another Florida district, this case has precedential value but another district court could rule differently. If there are conflicting DCA decisions, then the Florida Supreme Court COULD review such conflict and render a decision which would be precedential in the state of Florida.
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