elective-shareOne of the most important concepts people need to understand about estate planning is the concept of “Elective Share” which is a body of state law that provides protections to a spouse that survives after the other spouse dies. In short, “Elective Share” seeks to ensure that a spouse is not left homeless and broke after a spouse dies.  The right provided is quite simple and broad…and because it is a right conferred by statute, it is simple to enforce.

It’s a complex subject matter, but basically a surviving spouse has the right to claim 30% of the value of an estate…if the surviving spouse has not waived that right by pre or post nuptial agreement.  It’s important to understand that significant changes to elective share occurred in 2012 and that many practitioners (and certainly our clients) are just now beginning to appreciate how dramatic those changes are. Here’s from a recent case:

It is an understatement to say that animosities arise in divorce proceedings which are inconsistent with wills executed when everything was rosy in the marriage. Divorce attorneys typically advise clients to revise their estate plans for the post-divorce world. However, with all the stress of divorce litigation, it is not uncommon for people to resist the idea of their own mortality and procrastinate their post-divorce estate planning. And then they die with a *243 will in place that provides for the former spouse.

Section 732.507(2), Florida Statutes (2012), protects divorced persons from their inattention to estate planning details. The statute provides:

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. 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.

(Emphasis added).

The statute is triggered by the entry of a final judgment of dissolution or annulment. It is broadly written to apply to a provision of a will that “affects” a former spouse. A common definition of “affect” is “to have an effect on.” Webster’s New World Collegiate Dictionary 23 (4th ed. 2002). A provision does not need to have a direct pecuniary benefit to “affect” a former spouse within the meaning of the statute. A provision that so “affects” a former spouse “become[s] void” “upon the dissolution.” If a provision is “void,” it is a nullity. Cf. State v. Nelson, 26 So.3d 570, 577 (Fla.2010)(“A nullity is defined as something that is legally void.”).

Because Article 4 of Thomas’s 2005 will left the residue of his estate to Wendy, she was affected by it. The bequest to the Wendy Family Trust was only to occur if Wendy predeceased Thomas. However, Wendy was very much alive on the date of dissolution and in complete control of the Revocable Trust that created the Wendy Family Trust for her niece and nephew to inherit. As the trustee of the Revocable Trust, Wendy had the authority to “merge any trust held hereunder with any other trusts [she] created” and to alter the terms of the “Wendy Family Trust.” Thus, on the date of the dissolution, Wendy was very much “affected” by Article 4 of the will, so that provision was rendered void by section 732.507(2).

The appellees contend that the second sentence of section 732.507(2) allowed the circuit court to treat Wendy as if she died, so that her family’s inheritance would proceed through her trust. This application of the statute would nullify the provision of the first sentence that, “upon divorce,” renders “void” those will provisions that affect a former spouse. The circuit court used the fiction of Wendy’s death to green light the rewriting of Wendy’s trust documents after Thomas’s death. However, section 732.507(2) becomes operative on the date of dissolution, so it does not allow for such post-death legal gymnastics to manipulate the issue of whether a will provision “affects” the former spouse.

169 So.3d 239 (2015)

Helen CARROLL, Appellant,






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