Clever Tactics No Get Around Florida Laws Concerning Post Divorce Wills

When Thomas Carroll died, the will left the estate to his wife and, if she were dead, the residuary to a trust created for the benefit of the wife’s niece and nephew. However, he died a month after the couple divorced which, under Florida law, voided any provisions in favor of the spouse and treats the former spouse as having predeceased on the date of the dissolution. His mother sought to take Carroll’s estate under intestacy but two lower courts ruled the wife legally predeceased the husband and the niece and nephew would inherit.

     In Carroll v. Israelson, the Court of Appeals reversed the trial court ruling that state law clearly voids any provisions in favor of the former spouse. A court will not be allowed to use the legal fiction created in the statute, which treats the former spouse as predeceasing, as a get around to a voided will provision. As a result, the niece and nephew would not be the beneficiaries of a trust and the estate would pass under other provisions of the will or intestacy.

See Brian Spiro, “Legal Gymnastics” Not Allowed to Re-Write Will After Divorce and Death, Clark Skatoff, July 2, 2015.