Automatic Revocation of Will Provisions that Affect an Ex-Spouse

Hydrangeas with calm blue sea in the background. Florida Wills Automatic Revocation of Beneficiary Designations After Divorce.

Spouses should know Florida Statutes automatically revokes certain will provisions upon a final judgment of dissolution or annulment.  Florida’s automatic revocation on divorce statute section 732.507(2), Florida Statutes may void provisions of a will that “affect” a former spouse.

After a Florida divorce, courts must administer and construe wills as if the former spouse had died at the time of the divorce. That’s true unless the will or the dissolution or divorce judgment provides otherwise.

Invalidated Will Provisions – Carroll v. Israelson

The court in Carroll v. Israelson applied the automatic revocation on divorce statute. It invalidated provisions of a will establishing trusts upon the decedent’s death to benefit his former wife’s relatives, because such provisions “affected” her. See Carroll v. Israelson, 169 So. 3d 239 (Fla. 4th DCA 2015) (followed in Galazka v. Estate of Perkins, 184 So. 3d 635 (Fla. 4th DCA 2016)).

Even when attorneys advise clients to update their estate plans, people resist thinking about their own mortality. So, they often procrastinate post-divorce estate planning.

Section 732.507(2), Florida Statutes: Automatic Revocation on Divorce of Will Provisions that Affect an Ex

But the automatic revocation on divorce statute, section 732.507(2), Florida Statutes, protects an ex who procrastinated and didn’t update a will.  Specifically, the statute voids on entry of a final judgment of dissolution or annulment any provision of a will a married person made that “affects” a former spouse. 

Read “affects” broadly, as the Carroll court did.  For a provision to “affect” a former spouse, the provision need not have a direct financial benefit on the former spouse.

Class of Beneficiaries Tied to Marital Status: 2023 Minnesota Automatic Revocation Case

So, Florida reads “affect” an ex-spouse broadly. Now what if the will provision doesn’t affect the ex-spouse directly, but provides for a gift to the decedent spouse’s “heirs-at-law”?

That issue arose in Minnesota, which has a revocation-on-divorce statute like Florida’s. In the Matter of Estate of Tomczik, Case No. A21-1420 (Supreme Court of Minnesota July 5, 2023), an ex-wife’s parents took on the decedent’s siblings and personal representative.

The testator signed the will in 1995. He named his then-wife as primary beneficiary with an alternate residuary clause leaving half his estate to his wife’s “heirs-at-law.” They divorced in 2019. He died in 2021 without updating his will.

The Parties’ Positions

The ex-wife’s parents objected to probate of the will identifying only the decedent’s siblings as heirs and devisees. The ex-wife’s parents argued the word, “wife,” was descriptive of one person, not limiting of the class of beneficiaries, so a gift to the heirs of the decedent’s “wife” didn’t fail merely because she was no longer his wife.

In opposition, the personal representative argued, after the divorce, the automatic revocation statute caused the ex-wife to no longer be the decedent’s “wife” referred to in his will. Thus, they argued, that meant the class of his wife’s “heirs-at-law” was a class of zero. 

The Ruling and Reasoning: “Wife’s Heirs” Limiting, Not Merely Descriptive

The trial court ruled the devise to her heirs failed under Minnesota’s automatic revocation on divorce statute. See Minnesota Uniform Probate Code, Minn. Stat. § 524.2-804, subdivisions 1-2. A split appeals court reversed. In re Est. of Tomczik, 976 N.W.2d 143, 145 (Minn. App. 2022). The Minnesota Supreme Court reversed the appellate court.

The Minnesota Supreme Court reasoned:

  1. The testator included his ex-wife’s name in the definitions.
  2. But the phrase, “my wife’s heirs-at-law” wasn’t used in the operative portions of the will to describe any named individuals.
  3. That term signaled the testator’s intent to describe the beneficiaries not as individuals but as members of a group identified by familial ties. Estate of Hermon, 46 Cal. Rptr. 2d 577 (Cal. Ct. App. 1995).
  4. The group the decedent identified in his will was a marriage-based group.
  5. Once he divorced, the automatic revocation-on-divorce statute meant he had no wife, thus there were no “wife’s heirs-at-law.” 

Descriptive Not Limiting: Named Individuals

In contrast, consider cases in which courts have deemed a relational term to be merely descriptive and not limiting.

  • The relational term had been a descriptor of the specific individual or individuals actually entitled to take or
  • The term was generally used in conjunction with the name of an individual or individuals. 

In re Will of Dezell, 194 N.W.2d 190 (Minn. 1972)  – “to my daughter-in-law, Margaret Dezell,” entitled the former daughter-in-law to take despite the dissolution of her marriage.

In re Est. of Kerr, 520 N.W.2d 512 (Minn. App. 1994) – a bequest to “my stepdaughter, Dawn M. Valentine” was not rendered invalid by the testator’s dissolution of marriage, which meant that Dawn M. Valentine was no longer his stepdaughter, because “stepdaughter” was a descriptive term rather than a limiting term.

In re Estate of McGlone, 436 So. 2d 441 (Fla. 4th DCA 1983) – “husband” or “wife” are descriptio personae when he or she is named and also described as husband or wife. Descriptio personae means a description of a person to identify someone in a legal instrument. 

In re Application of Carleton, 432 N.Y.S.2d 441 (N.Y. Surr. Ct. 1980) – after dissolution, language that bequeathed items to “my nephew and wife, Carl R. Baker and Helen L. Baker” entitled the former wife to take under the will. 

Timing Matters: No Revocation on Divorce When the Will Predates the Marriage

The statute does not revoke provisions of a will executed by a single person; it applies only when the marriage predates the will. In Gordon v. Fishman, 253 So. 3d 1218 (Fla. 2d DCA 2018), a man did not marry his fiancée he designated in his will as beneficiary until 15 months after he signed it. Their later divorce did not invalidate the beneficiary designation under 732.507(2), Florida Statutes.

Carroll held the date of dissolution or annulment triggers the statute.  The statute won’t allow “post-death legal gymnastics to manipulate the issue of whether a will provision ‘affects’ the former spouse.”

Exceptions to Automatic Revocation on Divorce of Will Provisions

Automatic revocation on divorce. Family jumping on sand.

Exceptions to automatic revocation on divorce of will provisions include:

By updating beneficiary designations in wills and other instruments upon divorce or annulment, parties may avoid leaving their survivors costly, acrimonious, drawn out litigation.

In Collaborative Divorce, to overcome automatic revocation on divorce, spouses may harness their power to contract and reach creative agreements about beneficiary desigations. For more information, contact Michael P. Sampson today.

Read how Collaborative Marital Settlement Agreements May Handle Automatic Revocation on Divorce of Insurance Beneficiary Designations.

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