Can My Ex Still Inherit Under My Will?

Here is a hypothetical situation: Jessica divorced her spouse 10 years ago. But one day, as she is going through some of her files, she comes across her will. She never updated the document following her divorce, and it still names her ex-spouse as the executor and primary beneficiary of her estate. Panicked, Jessica calls her lawyer to immediately make a new will.

While it is always a good idea to update a will following any major life event, suppose Jessica passed away before she discovered this oversight. Would her ex really take control of her estate? No. Florida law provides for this exact scenario.

Florida’s “Revocation Upon Divorce” Rules

Basically, when a court issues a final order dissolving a marriage, Florida law automatically revokes any provision in a will, trust, or beneficiary designation naming the former spouse. In other words, if Jessica had a will naming her ex as executor, that provision of the will was automatically invalidated at the time of her divorce. If she failed to update the will prior to her death, the probate court would treat the will itself as valid, but ignore any appointment or bequest to the former spouse as if they had predeceased Jessica. This “revocation upon divorce” rule also extends to trusts and other documents, such as an assignment of insurance benefits.

Now there are a couple of caveats here. First, there is nothing stopping someone from signing a new will, trust, or beneficiary designation after the divorce re-naming their ex as a fiduciary or beneficiary. The revocation upon divorce rule only applies to documents signed before the divorce. Second, there are cases where the terms of a divorce judgment or settlement may require one or both former spouses to make certain provisions in their estate planning for the other former spouse. For instance, a court may require a spouse required to pay alimony to take out a life insurance policy payable to the other spouse in order to guarantee their obligation.

Another thing to keep in mind is that while rare, it is possible for one spouse to die in the middle of divorce proceedings. In that case, the revocation upon divorce rule does not apply. This actually came up in a recent Florida appeals court decision, Merli v. Merli. There, the husband died in the middle of divorce proceedings and before a final property settlement was approved. The Fourth District held that notwithstanding the ongoing divorce, the wife enjoyed the same inheritance rights as any other spouse upon her husband’s untimely death.

Speak with a Tampa Family Law Attorney Today

A divorce often brings a number of legal consequences that are not always foreseen by the parties. This is where working with an experienced Tampa divorce lawyer can help. If you need legal advice or representation in connection with any family law matter, contact the Faulkner Law Group, PLLC, today to schedule a consultation with a member of our team.

Source:

scholar.google.com/scholar_case?case=9184680255966219000