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  • The American Lawyer, Adrian Philip Thomas

Inheritance Rights of Former Spouse

Written by on Sep 10, 2012| Posted in: Probate Litigation

As a Florida probate attorney, it is customary to encounter issues and disputes arising from a former spouse of the decedent.  For some time the Florida Legislature has provided a statutory scheme which provides a presumption preventing former spouses from inheriting from wills and revocable trusts (Florida Statutes §§ 732.507(2) and 736.1105, respectively).  Florida Statute 732.507(2) provides that any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage, absent the will or dissolution or divorce judgment expressly providing otherwise.

Similarly, Florida Statute §736.1105 provides that a revocable trust executed by a spouse prior to annulment or dissolution of the marriage becomes void upon annulment of the marriage or entry of the judgment of dissolution of marriage or divorce, absent the trust instrument or a judgment expressly providing otherwise.  The two statutes have provided a mechanism for modifying the decedent’s estate planning documents when they still provide for a former spouse (provided there is not an intent shown by the Decedent or a court other specifying otherwise).

Oftentimes people have assets which do not pass through their Last Will and Testament or Trust, such as pay on death bank accounts, annuities, other securities or life insurance.  Under Florida Statutes §§7322.507 and 736.1105 this previously could be problematic in the event of divorce, where one spouse did not modify the beneficiary of such an account upon a decree of divorce and then untimely died.   However, effective July 1, 2012 Florida Statute § 733.703 became effective.  This new law provides that a designation made by or on behalf of the decedent providing for the payment of transfer on death of an interest in an asset to or for the benefit of the decedent’s former spouse is void as of the time the decedent’s marriage was judicially dissolved or declared invalid by court order.  The decedent’s interest would then pass as if the former spouse predeceased the decedent.

Florida Statue § 732.703 does not override an order of the court from a divorce or dissolution proceeding, nor does it apply to the extent controlling federal law provides otherwise.  However, it acts as a practical tool for the estate and trust lawyer in Florida to seek to uphold the intent of the Decedent when there is no evidence of a desire or obligation to provide for the former spouse. 

If you have a question about the inheritance rights of a former spouse in a trust, estate, or pay on death account of a decedent, call to speak with an attorney at the Law Offices of Adrian Philip Thomas, P.A. for a no obligation consultation at 800-249-8125.       

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