In Carroll v. Israelson, No. 4D13-4532, 2015 WL 3999486, 2015 Fla. App. LEXIS 9965 (Fla. 4th DCA 2015), the Fourth DCA reversed the holding of the circuit court which, post-divorce, allowed a woman to be viewed as having predeceased her husband to allow the placement of the decedent’s residuary assets into twin, newly created trusts for the former wife’s niece and nephew. The Fourth DCA found this was contrary to the post-divorce will revocation statute, Section 732.507(2), Fla. Stat. In the subject case, Wendy Israelson Carroll was married to Thomas Carroll for eighteen years. In 2002, Wendy created a revocable trust (“Revocable Trust”) which named her both grantor and trustee. Through the Revocable Trust, she created a family trust (“Wendy Family Trust”) to receive the property of the Revocable Trust after her death, which would then be divided into two equal shares for Wendy’s niece and nephew. In 2005, Thomas executed a will (“Will”) which if Wendy predeceased him left the residue of his estate to the Wendy Family Trust. In 2012, the couple divorced and Thomas died shortly thereafter, without having changed his Will. The marital settlement agreement (“MSA”) contained standard language whereby each party waived the right to share in the other’s estate. The MSA also provided that Wendy would retain the marital home as well as all financial accounts and assets in her name or in the name of the Revocable Trust. With the divorce, Thomas’s mother, Helen Carroll became his sole intestate share.
Thomas’s mother responded to the designated personal representative’s petition for administration with a petition to determine beneficiaries whereby she sought an order determining the devise to the Revocable Trust was void pursuant to Section 732.507(2), Fla. Stat. She argued that Section 732.507(2), which automatically cuts divorced spouses out of each other’s wills, nullified the clause and since Wendy was still alive the Wendy Family Trust does not exist. The designated personal representative argued that it was the Will’s intent that if Wendy predeceased Thomas his residuary estate would pass to the Wendy Family Trust. He attached an affidavit signed by Wendy whereby she proposed that the Wendy Family Trust provisions could be created in a way that was irrevocable and could not be modified.
The circuit court found that Wendy could not personally benefit from the estate since she had waived such rights in the MSA and was deemed to have predeceased Thomas pursuant to Section 732.507(2), Fla. Stat. However, the circuit court also engaged in the legal fiction that Wendy had predeceased Thomas, which would allow the Wendy Family Trust to be created for the sole benefit of Wendy’s niece and nephew. On appeal, the Fourth DCA reversed the decision of the circuit court, which it stated exercised “legal gymnastics” to permit the placement of the residuary assets into irrevocable trusts for Wendy’s niece and nephew.
The Fourth DCA stated Section 732.507(2), Fla. Stat. is triggered by the entry of a final judgment of dissolution or annulment. They observed that the statute is broadly written to apply to a provision of a will which “affects” a former spouse. “Affect” is defined by Webster’s New World Collegiate Dictionary as, “to have an effect on.” A provision which “affects” a former spouse becomes void upon dissolution. If a provision is void, it is a nullity. Cf. State v. Nelson, 26 So. 3d 570, 577 (Fla. 2010). As Thomas’ 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 and she was alive on the date of dissolution and when he died. She was also in control of the Revocable Trust which created the Wendy Family Trust for her niece and nephew. As the trustee of the Revocable Trust, she had the authority to merge any trust held thereunder with any other trust which she created and to alter the terms of the Wendy Family Trust. Thus, on the date of dissolution, she was “affected” by the residuary clause of Thomas’s Will. “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.” Thus, the Fourth DCA reversed the holding of the circuit court and remanded for further proceedings consistent with its opinion.
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