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Can My Ex-Spouse Contest My Will?

Legal12

While a divorce legally dissolves a marriage, it does not necessarily sever all legal and financial ties between former spouses. In some cases, an ex-spouse may continue to be a beneficiary under a Will, Trust, or beneficiary designation. At the same time, divorce does significantly alter the legal ability of a former spouse to contest a Will or Trust made by their ex.

How Divorce Affects a Will

The basic rule under Florida law is that once a marriage is formally dissolved–i.e., a Court enters a final divorce decree–that voids any provision in a Will made by either spouse naming the other as a beneficiary or Personal Representative. In other words, if your Will named your spouse as Personal Representative or left them any property as an inheritance, those provisions of your Will no longer apply. The rest of your Will remains valid, however; the law basically acts as if your ex had died before you.

Now there are several caveats to this rule. The first is that divorce only voids provisions in a Will made after the parties were married. It does not cover Wills made prior to marriage. The Florida Second District Court of Appeal explained this exception in a 2018 decision, Gordon v. Fishman. In Gordon, a man signed a Will prior to marriage leaving property to his then-fiancée. The parties then subsequently married and divorced. After the man died, the Second District said the bequest to the ex-spouse was still valid, as the “plain and unambiguous language” of Florida law only voided gifts made in a post-marriage Will.

This brings up the second caveat: If the spouses have a Prenuptial or Postnuptial Agreement in place, its terms may also affect an ex-spouse’s ability to inherit under a will or trust. Similarly, the terms of a divorce settlement may, in some cases, contain an Agreement to maintain a former spouse as a beneficiary under a Will. In these situations, the agreements between the parties can override Florida’s “void-upon-divorce” rule.

The Right to Contest a Will

This leads us back to our original question: Can a former spouse contest a Will? The answer to this question will depend on the facts and circumstances of a particular Estate. But the general rule in Florida is that only an “interested person” has the legal standing to contest a will submitted to probate.

An “interested person” is anyone who stands to inherit under the Will, or if there is no Will is considered an intestate heir. If a former spouse is not named in the deceased person’s Will–or their prior designation as a beneficiary was voided by divorce–they will typically not be considered an interested person. That said, the ex-spouse may be an interested person if they were named as a beneficiary in a pre- or post-divorce Will, or if they are a creditor of the Estate (i.e., their ex owed the money).

It should also be noted that a Will contest is limited to matters related to a person’s probate estate. Assets that pass under a Trust or by beneficiary designation are generally not affected by a Will contest.

Contact a Pompano Beach Will Contest Lawyer Today

If you have questions about your own rights with respect to a potential Will contest, it is best to speak with a qualified Pompano Beach estate and trust litigation attorney as soon as possible. Contact the officers of Mark R. Manceri, P.A., Attorney at Law, today at 954-491-7099 to schedule a consultation.

Source:

scholar.google.com/scholar_case?case=10947387556874858866

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