Carroll v. Israelson, — So.3d —-, 2015 WL 3999486 (Fla. 4th DCA July 01, 2015)
In 1951 Florida enacted a statute automatically cutting divorced spouses out of each others’ wills (currently at F.S. 732.507(2)). In 1989 Florida extended this rule to revocable trusts (see F.S. 736.1105). And in 2012 extended it yet again to non-probate transfers such as life insurance policies, annuities, pay-on-death accounts, and retirement planning accounts (see F.S. 732.703, which I wrote about here).
The rationale underlying all these statutes was summed up nicely by the 4th DCA in this case:
“It is an understatement to say that animosities arise in divorce proceedings which are inconsistent with wills executed when everything was rosy in the marriage. Divorce attorneys typically advise clients to revise their estate plans for the post-divorce world. However, with all the stress of divorce litigation, it is not uncommon for people to resist the idea of their own mortality and procrastinate their post-divorce estate planning. And then they die with a will in place that provides for the former spouse.”
This case turns on how broadly the will-revocation statute (and by implication, all of our post-divorce nullification statutes) should be read.
Thomas Carroll was married to Wendy Israelson Carroll for eighteen years. In 2005, when things were good with the marriage, Thomas executed a will whose residuary clause left his entire estate to Wendy’s revocable trust, which benefits Wendy exclusively if she survives Thomas, and her niece and nephew if she predeceases him. The couple divorced in September 2012, and one month later Thomas died, never having changed his 2005 will. Thomas’ mother sued to set aside the residuary clause of her son’s will, arguing that it was nullified by F.S. 732.507(2). As her son’s sole intestate heir, the estate would go to her by default.
Wendy countered that the will’s residuary clause shouldn’t be nullified because her revocable trust (the 100% recipient of the residuary estate) could be administered as if she’d predeceased Thomas (thus benefiting her niece and nephew, but cutting out Thomas’ mom). The only hole in this argument is that Wendy’s still very much alive, so the trusts for her niece and nephew still didn’t exist. No problem said Wendy. She could pretend she was dead, and simply create the trusts after the fact. “Presto!” problem solved. Wendy’s family gets it all, Thomas’ mom gets nothing. This kind of mental gymnastics drives me crazy. But here’s the problem — sometimes it works! According to the 4th DCA:
Exercising vigorous legal gymnastics, the circuit court permitted the placement of the decedent’s residuary assets into twin, newly-created irrevocable trusts for the benefit of the former wife’s niece and nephew.
What’s it mean to be “affected” by an ex-spouse’s will?
Our post-divorce will-revocation statute voids any portion of a will that “affects” an ex-spouse. How broadly or narrowly that word should be read was the crux of this appeal. Ex-wife urged a narrow reading; arguing that she wasn’t “affected” by her ex-husband’s will because she promised not to touch the money (i.e., no direct pecuniary benefit = not being “affected” by the will), and to instead let it all go to two trusts she would create for her niece and nephew. Wrong answer, so says the 4th DCA:
The statute is triggered by the entry of a final judgment of dissolution or annulment. It is broadly written to apply to a provision of a will that “affects” a former spouse. A common definition of “affect” is “to have an effect on.” Webster’s New World Collegiate Dictionary 23 (4th ed.2002). A provision does not need to have a direct pecuniary benefit to “affect” a former spouse within the meaning of the statute. A provision that so “affects” a former spouse “become[s] void” “upon the dissolution.” If a provision is “void,” it is a nullity. Cf. State v. Nelson, 26 So.3d 570, 577 (Fla.2010) ( “A nullity is defined as something that is legally void.”).
Because Article 4 of Thomas’s 2005 will left the residue of his estate to Wendy, she was affected by it. The bequest to the Wendy Family Trust was only to occur if Wendy predeceased Thomas. However, Wendy was very much alive on the date of dissolution and in complete control of the Revocable Trust that created the Wendy Family Trust for her niece and nephew to inherit. As the trustee of the Revocable Trust, Wendy had the authority to “merge any trust held hereunder with any other trusts [she] created” and to alter the terms of the “Wendy Family Trust.” Thus, on the date of the dissolution, Wendy was very much “affected” by Article 4 of the will, so that provision was rendered void by section 732.507(2).
Legal gymnastics = reversal:
Bottom line, courts need to follow the statute.
We reverse the order of the circuit court because it was contrary to section 732.507(2), Florida Statutes (2012). . . . The circuit court used the fiction of Wendy’s death to green light the rewriting of Wendy’s trust documents after Thomas’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.
When it comes to invalidating a will, never take anything for granted. Judges are conditioned by experience and centuries of common law to enforce wills whenever possible, however possible. Overcoming that kind of institutional bias is never easy — even if you have a statute directly on point supporting nullification. That’s not to say these cases shouldn’t be prosecuted, but it does mean your client’s expectations must be appropriately managed, no matter how much of a “slam dunk” you might think your case is. Remember, it’s all good as long as you don’t over promise.