Does a Divorce Affect a Florida Will I Signed Prior to My Marriage?

It is always a good idea to review and revise your estate plan when a major life event occurs. This includes marriage, the birth of a child, or divorce. Of course, Florida law provides for certain situations where a person might inadvertently fail to update their will.

For example, there is what is known as the “pretermitted spouse” rule. This provides that if you execute a will, later marry, and you fail to revise your will before your death, your spouse receives the same share of your estate that they would be entitled to if you died without a will. In simple terms, the pretermitted spouse rule prevents you from accidentally disinheriting your spouse.

On the other hand, there is also Florida’s “revocation upon divorce” rule. This covers the opposite scenario. If you have a will and then later get a divorce, any provision of that will that “affects” your ex-spouse is void. In effect, the law assumes you meant to disinherit your ex when you got divorced.

Florida Legislature Overruled 2018 Appellate Court Decision

But what about a situation where you sign a will before you get married that makes provisions for your fiancée. You then get married and later divorced. If you never updated your will, does the revocation upon divorce rule still apply?

The Florida Second District Court of Appeal addressed this question in a 2018 decision, Gordon v. Fishman. In that case, Ron Priever signed a will in 2005 leaving property to his then-fiancée, Silvia Gordon. Under the terms of the will, if Gordon did not survive Priever, then her share of Priever’s estate would go to her two children from a prior relationship.

Priever and Gordon did not get married until two years after he executed this will. In 2013, they divorced. In 2015, Priever died. The legal guardian for Priever’s father, Robert Fishman, then filed a petition to probate Priever’s estate. Fishman alleged that Priever destroyed his 2005 will and that he died intestate. Gordon filed her own petition, alleging that Priever’s 2005 will was still valid.

The probate court held that under the revocation upon divorce rule, the 2005 will had to be construed as if Gordon had died before Priever. This meant that Gordon’s two children and Previer’s father were the rightful beneficiaries of the estate. Gordon appealed.

The Second District held that revocation upon divorce did not apply to the facts of the case. The reason was that the law, as then worded, only covered a “will executed by a married person that affects the spouse of that person.” At the time Priever executed his will, he was not a “married person.” In other words, the will had to predate the marriage.

The Florida legislature subsequently amended the statute in 2021 to provide that revocation upon divorce applies to any provision of a will affecting a testator’s spouse “whether the marriage occurred before or after the execution of such will.” This revised law effectively overruled the Gordon decision.

Contact a Pompano Beach Revoked Will Lawyer Today

When there are questions surrounding the legality of enforceability of a will, it is critical to seek out competent legal advice. If you need to speak with an experienced Pompano Beach revoked will lawyer, contact Mark R. Manceri, P.A., today to schedule a consultation.

Sources:

scholar.google.com/scholar_case?case=10947387556874858866

flsenate.gov/Laws/Statutes/2024/732.507