I frequently receive questions regarding the effect of divorce upon a last will. Most states have a provision in their probate code invalidating bequests to former spouses under certain circumstances. Below are samples from three states.Florida Stat. §732.507. Effect of subsequent marriage, birth, adoption, or dissolution of marriage.--All three of these state probate provisions only apply to situation where the testator (i.e., maker of the will) was married at the time the will was made. It is not uncommon for an individual to intentionally make a bequest to a former. So long as the last will containing the bequest to said former spouse was executed AFTER the divorce was completed, these statutes do not invalidate them. What if the the decedent filed for divorce, did not change his last will while the divorce was pending, then died before the divorce became final? For the states of California, Florida, and Texas, to my knowledge the surviving spouse against whom a divorce action was pending at death still recovers any bequest made to her in the decedent's last will.
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(2) Any 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 or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise.
California Probate Code § 6122. (a) Unless the will expressly provides otherwise, if after executing a will the testator's marriage is dissolved or annulled, the dissolution or annulment revokes all of the following:
(1) Any disposition or appointment of property made by the will to the former spouse.
(2) Any provision of the will conferring a general or special
power of appointment on the former spouse.
(3) Any provision of the will nominating the former spouse as
executor, trustee, conservator, or guardian.
Texas Probate Code § 69. WILL PROVISIONS MADE BEFORE DISSOLUTION OF MARRIAGE. * * * (b) If, after making a will, the testator's marriage is dissolved, whether by divorce, annulment, or a declaration that the marriage is void, all provisions in the will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator failed to survive the testator, unless the will expressly provides otherwise.
If you are faced with a set facts in the area of divorce and last wills not discussed above, leave a comment and I'll take a look at it (no guaranty I'll come up with an answer though).
4 comments:
What if the testator made a will while married giving everything to his spouse, and if not survived by his spouse, to his children in equal shares. Subsequently the spouse dies and the testator remarries, but never changes his will. Who gets what?
The new spouse does not step into the shoes of the spouse who died. The will should specifically name the spouse (i.e., Sally Smith). Sally Smith has predeceased the testator, therefore, pursuant to the terms of the will the children take in equal shares. The fact that the testator remarried does not invalidate the will (in any state that I am aware of).
However, in most states, the surviving spouse can seek a forced shared. The will is still enforced but, under states with a forced share for the surviving spouse who is omitted from the will, she gets a certain percentage off the top before the remainder goes to the heirs under the will.
My sister and her husband have a signed/notarized separation and a signed divorce in NC. The papers were handed over to the lawyer handling the divorce with both parties in agreement. The lawyer did NOT take it before a judge to be finalized for over a month. During that time my sister unexpectedly died. Is this considered a "pending" divorce? Her ex husband is named beneficiary in her old WILL created when they were first married. Is he still entitled to her property? In the Separation and Divorce he agreed to give up all rights to her personal property and finacial holdings as she gave up all rights to his.
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