In 1951 Florida added a provision to its Probate Code automatically cutting divorced spouses out of each others’ wills (F.S. 732.507(2)). In 1989 a similar provision was added to our Trust Code (F.S. 736.1105). And in 2012 the post-divorce automatic revocation rule was extended to non-probate transfers, such as pay-on-death payments from life insurance policies, annuities, employee benefit plans, and IRAs (F.S. 732.703, which I wrote about here when first adopted).
Does the timing of the marriage matter? YES
Either by design or oversight, there’s a key distinction between the older will and trust rules and the more recent non-probate transfer rule. For wills and trusts, the automatic revocation rule applies only if the marriage predates the operative document.
- F.S. 732.507(2): … “a will executed by a married person …”
- F.S. 736.1105: … “a revocable trust … executed by a husband or wife …”
For example, if your will or trust benefits your girlfriend, who you then marry and subsequently divorce, your ex’ keeps the inheritance (the marriage did not predate the will/trust). On the other hand, if you named this same girlfriend the beneficiary of your life insurance policy or IRA, she’s out of luck. For purposes of the non-probate transfer rule the sequence of execution and marriage doesn’t matter.
- F.S. 732.703(2): “A designation made by or on behalf of the decedent providing for the payment or transfer at death of an interest in an asset to or for the benefit of the decedent’s former spouse is void as of the time the decedent’s marriage was judicially dissolved or declared invalid by court order prior to the decedent’s death, if the designation was made prior to the dissolution or court order.”
Gordon v. Fishman, — So.3d —- 2018 WL 4039135 (Fla. 2d DCA August 24, 2018)
In 2005 Ron Priever executed a will devising property to his then fiancé, Silvia Gordon. The couple married two years later, and subsequently divorced in 2013. Priever died two years after the divorce, leaving no children or spouse. He never revoked his 2005 will.
The decedent’s father claimed F.S. 732.507(2) automatically cut Gordon out of the will once she and the decedent divorced. Gordon pointed out the statute didn’t apply to her because she wasn’t married to the decedent at the time he signed his will. The probate judge ruled against Gordon anyway. Wrong answer said the 2d DCA. Here’s why:
The legislature’s use of the adjective “married” to modify “person” is a clear indication that it intended the “person” executing the will to be “married” at the time of execution.[FN2] Thus, section 732.507(2) applies only when the marriage predates the will. The decedent did not marry Ms. Gordon until about fifteen months after he executed his will. Section 732.507(2) does not apply here.
[FN2] Notably, the legislature’s use of the adjective “married” in section 732.507(2) differs from the statutes in other states—where the courts have determined the sequence of the execution of the will and the marriage was irrelevant—as the statutes in those states did not include the adjective “married” or any other language that required the testator to be married prior to the execution of the will. See, e.g., Davis v. Aringe, 292 Ark. 549, 731 S.W.2d 210, 211-12 (1987); In re Estate of Reeves, 233 Cal.App.3d 651, 284 Cal.Rptr. 650, 654 (1991); In re Estate of Forrest, 302 Ill.App.3d 1021, 236 Ill.Dec. 169, 706 N.E.2d 1043, 1045-46 (1999); In re Marriage of Duke, 549 N.E.2d 1096, 1099-1100 (Ind. Ct. App.), on reh’g, 552 N.E.2d 504 (Ind. Ct. App. 1990); Russell v. Johnston, 327 N.W.2d 226, 229 (Iowa 1982); In re Estate of Bloomer, 620 S.W.2d 365, 367 (Mo. 1981) (“The statute does not say ‘all provisions of any will made subsequent to the marriage and in favor of the spouse so divorced are thereby revoked.’ ”); In re Will of Reilly, 201 N.J.Super. 306, 493 A.2d 32, 33, 35 (1985); In re Estate of Knospe, 165 Misc.2d 45, 626 N.Y.S.2d 701, 702-03 (Surr. Ct. 1995).