What Florida’s Amended “Revocation Upon Divorce” Rule Means For Trust And Estate Law
Since the 1950s, Florida law has included provisions for automatically cutting a person’s former spouse out of a will made prior to the divorce. This is obviously to prevent a situation where a person forgot to update their will after the divorce and potentially leaving their ex as personal representative and/or a beneficiary of their estate. Similar provisions apply to revocable trusts governed by Florida law as well as non-probate transfers of certain assets, such as retirement plans.
There was, however, something of a loophole in the law. A 2018 decision from the Florida Second District Court of Appeals, Gordon v. Fishman, helped to expose the issue. In the Gordon case, a man with the last name Priever signed a will during his engagement to a woman with the last name Gordon. The couple subsequently married but later divorced. Priever died two years after the divorce having never amended his will.
The Second District Court of Appeal held that Gordon was still entitled to inherit under the will as it was executed before the marriage. As Florida law was then written, the revocation-upon-divorce rule only applied to “a will executed by a married person.” In other words, a will signed before the marriage–while the parties were merely engaged–was not covered by the statute.
To prevent a similar situation like this in the future, the Florida legislature passed Senate Bill 1070 earlier this year, which became law on July 1, 2021. The revised law now provides:
Any provision of a will that affects the testator’s spouse is void upon dissolution of the marriage of the testator and the spouse, whether the marriage occurred before or after the execution of such will.
SB 1070, which included a number of other provisions related to probate and trusts, made similar amendments to the laws governing trusts. In a legislative analysis accompanying the final bill, the legislature specifically cited the Gordon decision as problematic in that the Second District’s “strict reading” of the prior statute “can lead to unexpected windfalls for an ex-spouse years after divorce, to the detriment of the expected heirs of an estate (such as the current spouse, children, parents, and other family.)”
Creating a “Legal Fiction” That Your Ex Died Before You
So what do these rules mean in practice? Basically, if a person signs a will before or during their marriage and subsequently divorces, Florida courts will create a “legal fiction” that their ex-spouse died before them, even if they are still living. Effectively, the will is carried out as if the former spouse is also deceased.
Now there are some exceptions to this rule. If a person signs a new will after their divorce reaffirming their wish to name their ex as a beneficiary or fiduciary, the courts will honor that. Likewise, if the divorce judgment itself requires a person to maintain a former spouse as a beneficiary, that remains valid as well.
If you have further questions about the law in this area, or you are involved in a beneficiary dispute regarding an estate, contact Pompano Beach estate and trust litigation attorney Mark R. Manceri today to schedule a consultation.