Marlowe v. Brown, 944 So.2d 1036 (Fla. 4th DCA Aug 02, 2006)

Being an effective probate litigator often requires lateral thinking — the generation of novel solutions to problems using other than straightforward, step-by-step logic. The point of lateral thinking is that many problems require a different perspective to solve successfully.

The linked-to case is a perfect example. In this case a couple was in the midst of a very contentious divorce proceeding.  After they signed a non-final mediation agreement, but before a final judgment of divorce was entered, husband died. Shortly thereafter, wife died.  Presto! . . . we’re in probate litigation land.

Why fight over a 50% divorce mediation agreement when you can get 100% in probate?

Before husband died, the parties had been contesting the meaning of their divorce mediation agreement, which contemplated a 50/50 split of the couple’s assets.  Rather than continue this litigation in a linear fashion within the probate context, wife’s PR came at the problem from a completely different perspective: why argue over 50/50 when wife, as a surviving spouse, gets 100% of all jointly titled assets?

In September, 2003, the wife moved the probate court to declare certain assets to be hers. Among these assets were the Greenbrier Farm, the Naked Lady Ranch, and “Hatteras Lots;” the dissolution judge’s January 21 order had found that the husband and wife owned these properties as tenants by the entirety. The wife argued that these lots passed to her by operation of law when her husband died. The wife made similar arguments as to other properties based on the way the properties were titled at the time of the husband’s death. For example, the wife argued that 103,114.299 troy ounces of silver passed to her under the provisions of a storage contract which declared that the account was a joint tenancy with right of survivorship.

Wife lost this argument at the trial court level . . . but won where it counts: on appeal.  The 4th DCA ruled that first, in the absence of a final judgment, there was no divorce; and second, as surviving spouse she gets 100% of the joint property.  Here’s how the 4th DCA summed up its thinking:

The dissolution of marriage action terminated with the death of the husband and the . . . judge should have dismissed the case upon the wife’s motion. . . .

In Price v. Price, 114 Fla. 233, 153 So. 904, 905 (1934), the supreme court described the effect of an appellate reversal of a divorce decree, where one spouse dies after the issuance of the decree, but while the appeal is pending:

[O]n such reversal, the parties will be placed in the position they occupied before the decree was entered, and if one of them has died between the date of the decree of divorce and its reversal, the survivor procuring the reversal will be entitled to all rights of succession or the like, in the estate of the other, the same as if no divorce has ever been had.

Similarly, the husband’s death in this case left the wife in the legal position of one whose marriage was terminated by death, and not by a final judgment.

Yes, lateral thinking wins the day again.