client portal
  • Legal Leaders logo
  • Blue Forbes logo
  • AVVO 10.0
  • Top 100 Lawyers badge
  • Daily Business Review Newspaper
  • Legal Elite 2012 Badge
  • Top Rated Lawyers
  • The American Lawyer, Adrian Philip Thomas

Will Devising Property to Fiancee Survives Subsequent Marriage and Divorce

Written by on Sep 27, 2018| Posted in: Estate Litigation

Ex-wife 1 – Incapacitated Father 0: An Unreasonable Conclusion Based on Statutory Construction

Gordon v. Fishman, 253 So.3d 1218 (Fla. 2d DCA 2018)

In 2005, Ron Priever executed a will devising property to his then fiancée, Silvia Gordon.  Priever and Gordon married in 2007 and divorced in 2013.  Mr. Priever died in 2015, leaving no spouse and no children and never having changed his will; however, Priever was survived by his incapacitated father, Bernard, who was the ward of a guardianship. 

Bernard’s guardian petitioned for administration, treating the estate as if Priever died without a will, which would leave Bernard the intestate beneficiary.  The court granted the petition and appointed the guardian as personal representative.  Thereafter, Gordon filed Priever’s original will with the court claiming that she was the beneficiary under the terms of Priever’s will executed before their marriage and divorce.  The guardian objected, claiming that once Priever and Gordon divorced any interest Gordon had under the will was void.  The trial court agreed, but the Second District Court did not.

At issue was the interpretation of Florida Statute §732.507(2), which states, in pertinent part:

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. [emphasis supplied]

The punchline in this opinion is that Priever executed the will devising property to Gordon before they were married, therefore the Second District held that the statute did not apply and the devise to Gordon was, in fact, valid.

It is apparent from the opinion that the Second District did not necessarily find this conclusion fair.  The opinion focused extensively on the rules of statutory construction, noting that “[t]he cardinal rule of statutory construction is that a statute should be construed so as to ascertain and give effect to the intention of the Legislature as expressed in the statute.”  Gordon (citing Gaulden v. State, 195 So.3d 1123, 1125 (Fla. 2016)).  Ergo, the court concluded that when the legislature used the word “married” in front of the word “person” that it limited the statute’s application to wills executed by persons married at the time of the execution.  The court concluded that because Priever was not married to Gordon at the time he executed the will – they married 15 months later – the statute did not apply.

In what reads like an open invitation to the legislature to change the language of the statute, the court further observed that “[i]f the legislature did not intend the results mandated by the statute’s plain language, then the appropriate remedy is for it to amend the statute.”  Id. (citing Whitney Bank v. Grant, 223 So.3d 476, 479 (Fla. 1st DCA 2017).  The court also identified several states with statutes like Florida’s that omit the word “married” making the sequence of the execution of the will and the marriage irrelevant.  In other words, the divorce is the triggering factor, not the order of execution and marriage.  This is certainly logical and consistent with the judicial observation that “[i]t is an understatement to say that animosities arise in divorce proceedings which are inconsistent with wills executed when everything was rosy in the marriage.”  Carroll v. Israelson, 169 So.3d 239, 243 (Fla. 3d DCA 2015).

The Second District could have found, as the Third District did in Conascenta v. Giordano, 143 So.2d 682 (Fla. 3d DCA 1962), that a literal interpretation of the statute led to an unreasonable conclusion leaving it duty-bound to interpret the statute in accordance with legislative intent, but it apparently did not feel the facts in this case justified judicial interpretation of what it otherwise found to be a plain and unambiguous statute.  In the end, the ex-wife will inherit under Priever’s will instead of his incapacitated father.  It’s time for the legislators to sharpen their pencils.

We can make a difference.
Call now for a complimentary consultation.
Toll Free 1-800-249-8125

Phone: (954) 764-7273
Fax: (954) 764-7274

Las Olas Square
515 East Las Olas Blvd, Suite 1050
Fort Lauderdale, FL 33301

Email Disclaimer
Contacting us by email does not establish an attorney-client relationship. You should not send us any confidential information and we will not treat as confidential any information you choose to provide. Proceeding to send us an email via this online link acknowledges that you understand and agree with this notice.