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Divorce and Contested Wills

February 24

Can an Ex-Spouse Contest a Will?

Written by Thomas Upchurch

Does an ex-spouse get an inheritance?” is a common question among divorced people in Florida.

This is understandable—divorced spouses ordinarily don’t want to allow one another to inherit assets through their respective wills. Whether due to bad feelings, the desire to have a new spouse inherit the assets formally bequeathed to the former spouse, or some other reason, it is rare for ex-spouses to provide for one another in their wills. However, many people fail to update their wills following divorce.

Although Florida law contains provisions addressing the effect of divorce on a will, it is always best to be proactive in this area by reviewing and updating your estate plan following a divorce with the assistance of an experienced estate planning lawyer. In addition, divorce rights in Florida are complicated, so legal assistance is often necessary to ensure that your assets remain protected. In this article, we address the question of whether an ex-spouse can contest a will in Florida.

Common Grounds for Contesting a Will in Florida

Can a divorced spouse inherit assets from his or her ex? Before examining this issue, it is necessary to understand what a will contest is and some of the common reasons people contest wills in Florida. A will contest is a formal objection raised against the validity of a will. There are several reasons that people contest wills, including:

Irregularities in a Will’s Execution. Wills are formal legal documents, so they must meet certain legal requirements to be valid. In Florida, a will must be

  • In writing,
  • Signed by the testator (i.e., the maker of the will) in the presence of two witnesses, and
  • Signed by the two witnesses.

When a will fails to meet any of these requirements, a person may have grounds to contest it.

Lack of Capacity. Anyone 18 years of age who is of sound mind may make a will. The requirement that a testator be of sound mind is called testamentary capacity. This means that the testator must have the mental capacity to know what property he or she owns, understand what he or she is doing, know who his or her heirs are, and understand the effect of executing a will. When the testator lacks the capacity to make a will, a person may initiate a will contest.

Undue Influence. An additional ground to challenge a will is undue influence. Undue influence is an accusation that a person who benefits under a will coerced the testator to either change his or her will or to write it in a way that benefits the influencer. Undue influence goes beyond mere persuasion. Rather, a person who contests a will on this basis must demonstrate that the testator’s mind was so controlled by the undue influencer that he or she essentially had no free will when creating the will. In other words, it must be proven that the testator made the will because he or she was mentally and emotionally overpowered by the undue influencer.

Estate Fraud. If a person’s will is executed under false pretenses, this may lead to a will contest. For example, if a beneficiary misrepresents facts or lies to the testator, and the will is subsequently changed based on these falsities, those affected may challenge the will in a court of law. Examples of fraud related to wills include:

  • Fraud in the execution. This form of fraud occurs when a testator signs a document without realizing that it is a will.
  • Fraud in the inducement. When a person tricks a testator into believing that he or she must sign a will, this is called fraud in the inducement.
  • Misrepresentation. This type of fraud involves lying about what signing a will entails.

Divorce Affects Inheritance Under a Will in Florida

In Florida, divorce affects inheritance under a will. Pursuant to section 732.507, Florida Statutes, divorce effectively removes a person’s ex-spouse from his or her will. Specifically, the law states that, for a will that is executed during a marriage, any provision that affects the spouse of the testator shall become void upon divorce from that person or upon the annulment or dissolution of the marriage.

Following the divorce or annulment, the will shall be administered and construed as if the former spouse had died at the time of the divorce, unless the will, dissolution, or divorce judgment expressly provides otherwise. Therefore, an ex-spouse can contest a will made during marriage, but, unless an exception applies, such a contest is unlikely to be successful.

Inheritance After Divorce for Wills Made Before Marriage

Although it is most common for a person to include his or her spouse in a will executed during marriage, people sometimes do so before getting married. This raises the question of whether an ex-spouse can contest a will that was made prior to marriage. The Florida Second District Court of Appeal was recently called upon to provide guidance on this matter, since the statute discussed above (section 732.507) specifically references wills made during marriage. In the case, which involved a dispute between the father and ex-wife of a deceased Florida resident, the decedent had signed his will approximately two years before he married his then-fiancée. In his will, he left his fiancée certain property. In addition, the will provided that, if the man’s fiancée died before him, the property would pass to her two children from a previous relationship. When the will was presented for probate, the personal representative of the decedent’s estate moved to disqualify the ex-wife, claiming that the divorce effectively removed her from the decedent’s will.

The Florida Second District Court of Appeal was then called upon to determine whether the language in section 732.507 applies to wills made both before and during marriage. The court rejected the notion that the law covered a will executed in contemplation of marriage. In reaching its decision, the court referenced the plain language of the statute, which contains no language addressing wills executed prior to marriage.

Thus, provisions affecting an ex-spouse in a will made prior to marriage generally remain valid after divorce, and similar provisions made after marriage are generally invalid. The practical effect of this is that a spouse may be able to contest a will in Florida depending on the timing of the will’s execution. However, regardless of when a will is executed, it is advisable to update your estate plan after a divorce to ensure that your wishes regarding your assets and other issues are honored. 

Updating Your Will After a Divorce

As noted above, depending on the circumstances, a spouse may be able to contest a will following divorce. Therefore, to avoid a possible challenge, it is recommended that you update your will immediately following a divorce. There are several reasons to update your will following a divorce. Issues to address in your will after you obtain a divorce from your spouse include:

Assets. As discussed above, there are laws in place to prevent the unintended transfer of assets to an ex-spouse following divorce. However, rather than relying on Florida law, it is a good idea to revise your will after a divorce to remove your ex-spouse as the beneficiary of certain assets. And as discussed above, this is especially important if your will was executed prior to marriage.

Executor. If your will names your ex-spouse as an administrator or executor of your will, you can change this by updating the document.

Children’s guardian. Finally, if something were to happen to you before your children reach adulthood, your will may stipulate who will act as their guardian. Following a divorce, you should review your will and make any necessary updates in this area, especially if the current named guardian is a former in-law.

Contact a Florida Will Contest Attorney Today

If you are facing a will contest in the state of Florida, you need an experienced Florida will contest attorney in your corner. At Upchurch Law, experienced and knowledgeable will contest lawyer Thomas Upchurch is here to walk you through the will contest process and take the steps required to ensure that your will contest has a successful resolution. Thomas Upchurch is an experienced litigator with the knowledge and skills necessary to successfully handle your will contest case.

Based in Daytona Beach, Florida, Upchurch Law has a strong reputation for providing high-quality legal counsel to clients throughout the state of Florida. Even if you aren’t facing a will contest, we can help you update your will and other estate planning documents after divorce. 

Whether you need help with a will contest, need to update your will, or require guidance on divorce rights in Florida, our highly experienced Florida legal team is here to ensure that you and your family receive the assistance you need. We also understand how difficult family law issues can be, so we vow to handle your case with the utmost compassion, patience, and understanding. Please contact us today to schedule a consultation with our experienced Florida will contest lawyer.