Are Ex Spouses Always Written Out of Wills? Not Always

Let’s assume that you are married, and you have a Will that includes your spouse. Was that Will made before you were married, or after you were married to him or her? It turns out, that distinction has a big legal impact in probate court.

A Will Executed While Married

The law says that if you make a Will while you are married to someone, and you get divorced, the parts of the Will that leave anything to your (now, ex) spouse, are null and void. You don’t have to do anything else, or take any action; your now divorced ex husband or wife, loses the right to inherit under the Will (although they may have other rights to inherit under whatever divorce agreement you may come to in the divorce process).

What About the Property?

That does leave one problem: what happens to the property that your now ex spouse was supposed to inherit?

That’s why when you get divorced, it is a good time to amend your estate documents. That property has nobody to go to, and thus, will pass by intestate (Florida’s laws on who gets property when there is no Will), which may or may not be what you want to happen.

When A Will is Executed Before Marriage

But what happens when a Will is executed before you marry your spouse, and then you later get divorced? When the Will was created, he or she was not a spouse. Does the automatic termination of rights under a Will also happen in that situation?

At least one court has said no. That means that your ex spouse could still stand to inherit whatever was left to him or her in your Will, even after divorce. And for most people that’s definitely not something that they want to happen.

Challenging Your Will

That also means that an ex spouse in this situation, also has standing and ability to challenge a Will in probate court, under the same grounds that anybody else would be able to challenge the Will.

The ex spouse could claim, for example, mental incapacity or undue influence. You could have a very uncomfortable situation where an ex spouse is challenging your current family members rights to inherit under your Will.

Making Changes

In these situations, it is even more imperative that you see your estate planning or probate law attorney, to ensure that you are making the proper changes to your Will. Remember also that the provisions of any divorce or marital settlement agreement, will take precedence over your Will, and if they do conflict that can lead to challenges in probate court by ex spouses, seeking to preserve their right to inherit whatever they are supposed to inherit via the terms of a divorce.

So in drafting a new Will, post-divorce, you should know or have handy, your divorce agreement, so that you can draft new estate documents that won’t lead to a probate law challenge.

Call the West Palm Beach probate lawyers at The Law Offices of Larry E. Bray today for help with your probate law case.

Sources:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/Sections/0732.703.html

floridabar.org/the-florida-bar-journal/estate-planning-issues-in-a-divorce-situation-ii-an-update-and-standing-orders/