A New Twist: Divorce After Death
In a recent National Law Journal article entitled "A New Twist: Divorce After Death" there was an interesting discussion regarding posthumous divorces in light of recent probate law changes and a handful of unusual lawsuits that deal with spouses who died during divorce proceedings. I have written before about the often close connection between probate litigation and divorce proceedings (see here and here). The linked-to article simply underscores how high the stakes can be in the probate context when estate planning issues are not immediately addressed after a divorce (better yet, during the divorce proceeding). Here is an excerpt from the linked-to story:
In Pennsylvania, an attorney is seeking a first-of-its kind posthumous divorce settlement following the death of her client -- a dentist who was killed in his home in April, the night before he was to sign divorce papers. Yelenic v. Yelenic, No. 10944 (Indiana Co., Pa., Ct. C.P. 2003).
In Connecticut, divorce proceedings are still alive in the case of Andrew Kissel, a millionaire developer who was found murdered in his Greenwich home in April, nearly a year after his wife filed for divorce. Millions of dollars are at stake. Kissel v. Kissel, No. FST-FA-05-4003907-S (Stanford, Conn., Super. Ct.).
Posthumous divorce litigation and revised probate laws has prompted family law expert Jonathan W. Wolfe to issue a word of warning to his clients.
"If you have a will, it has to be changed immediately. And if you don't have a will, you need to have one ... because you are now in a position in your life where you don't want your separate assets to go to the person you're trying to divorce," said Wolfe, who chairs the family law committee for the American Bar Association's General Practice, Solo and Small Firm Division.
Florida does have two statutes that treat a spouse as being predeceased for purposes of a will (732.507) and a revocable trust (737.106)executed prior to the dissolution of marriage. The Stetson Law Review is currently working on an article to propose a similar statute for other non-probate instruments such as life insurance policies.
However, while the divorce is pending, the surviving spouse still has homestead, elective share and exempt property rights. I have drafted wills to provide that the spouse does not take if a divorce proceeding has been filed or is pending, but only a postnuptial agreement or divorce decree fully resolve these issues. Occasionally, couples do reconcile after initiating divorce proceedings.
Also, what about community property issues? F.S. 732.219 addresses property that retains its community property character when the couple moves to Florida. Again, it seems that only the divorce decree can fully address the issue.
Estate planning while the divorce is pending is incredibly difficult.