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Sunday, August 26, 2018

Spouse Not Removed from Will by Reason of Divorce

This is an interesting case, although the issue probably does not come up that often.

While unmarried, Mr. Priever executed a will leaving his property to his then fiancée, Ms. Gordon. The two then married, and later divorced. Mr. Priever then died.

Mr. Priever’s father, through his guardian,  petitioned to have the will construed as if Ms. Gordon predeceased Mr. Priever pursuant to Fla.Stats. §732.507(2). This statute reads:

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.

Clearly, if Mr. Priever executed this will AFTER he married Ms. Gordon, she would be removed as a beneficiary. Mr. Priever signed the will BEFORE marriage, however.

The trial court held that the statute removed Ms. Gordon as a beneficiary. The appellate court reversed the decision, and held the statute did not apply and she should not be removed as a beneficiary by the statute.

The court relied on the “married person” language of the statute (“Any provision of a will executed by a married person that affects the spouse. . .). Since Mr. Priever was not a married person when he signed his will, that was enough for the appellate court to find the statute did not apply.

Policy-wise, the statute exists based on a legislative judgment that a spouse who divorces but does not change his or her will did so because of inadvertence and not an intent to leave the ex-spouse in the will. While this reasoning probably holds to a pre-marriage will, one can come up with circumstances where it shouldn’t. Perhaps the Florida Bar or the Florida legislature might take on a project to expand the statute to also cover pre-marriage wills.

SILVIA GORDON, Appellant, v. ROBERT FISHMAN, as personal representative of the Estate of Ron Priever, deceased; ROBERT FISHMAN, as Guardian of Bernard Priever; SAMUEL GORDON; and REBECCA GORDON, Appellees. 2nd District. Case No. 2D17-1488. August 24, 2018


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