Carroll v. Israelson

Carroll v. Israelson, 169 So.3d 239 (Fla. 4th DCA 2015), 2015 WL 3999486

The focus of this case was the applicability of F.S. 732.507(2), dealing with the effect of divorce on a decedent's will which included a devise to his former spouse and a trust for her family.

The decedent and his former spouse divorced one month before his death. Understandably, at the time of his death, he had not yet changed his estate plan to remove his former spouse from his will.  At his death, the will provided for the residuary of his estate to pass to his former spouse, and if she predeceased him, to a family trust created under her revocable trust.  The former spouse's revocable trust gave her the right to receive income and principal from the trust and to revoke or modify the trust at any time.  Upon her death, a family trust would be created for the benefit of her niece and nephew.

 At the time of their divorce, the decedent and his former spouse entered into a marital settlement agreement in which each party agreed to waive their right to share in the other's estate.  Thus, at the time of their divorce, since they had no children, the decedent's mother became his sole intestate heir.

Following the decedent's death, the former spouse's brother attempted to probate the decedent's will.  In response, his mother filed a petition to determine beneficiaries, arguing that the devise to the former spouse's  trust was void pursuant to the marital settlement agreement and F.S. 732.507(2), so the estate should pass to her by intestacy.  She argued since the former spouse could access the assets of her revocable trust, the disposition to that trust was void, and additionally, the family trust does not even exist until the former spouse's death.  The former spouse's brother argued that the decedent's intent was that if the former spouse predeceased him, his estate would pass for the benefit of the niece and nephew, and filed an affidavit from the former spouse stating that she would modify the trust so that the provisions for the niece and nephew were irrevocable.  The trial court "engaged in the legal fiction" that the former spouse had predeceased her ex-husband, and allowed the manipulation of her revocable trust to create the family trust for the benefit of the niece and nephew.

The Court reversed, holding that F.S. 732.507(2) does not allow for "post-death legal gymnastics" to manipulate the terms of the will.  F.S. 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 annulment of the marriage.  After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise."  

The Court explained that a provision that "affects" a former spouse, does not necessarily mean a provision which provides a direct pecuniary benefit to a former spouse.  Any provision which has an effect on the former spouse would also become void upon the dissolution.  So, not only did the provision leaving the residue of the estate to the former spouse have an effect on her, but the bequest to the family trust did as well.  Since she was alive and had complete control over her revocable trust, she could merge that trust to any other trust and alter the terms of the family trust.  Because F.S. 732.507(2) becomes operative on the date of dissolution, the attempt to modify the revocable trust to make the family trust irrevocable would be too late, since as of the date of dissolution, the trust as written affected the former spouse and thus the disposition to that trust was already void.


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