Tag: 2d DCA

I surrender. Take my house. Actually, on second thought…

I surrender. Take my house. Actually, on second thought…

The Second District Court of Appeal issued an October 2019 opinion which bolsters creditors’ rights in the recently-developing interplay of federal bankruptcy law and Florida state foreclosure laws. Specifically, the opinion addressed the effect that a bankruptcy debtor’s surrender of collateral real property has on the debtor’s ability to defend a foreclosure.

Continue reading “I surrender. Take my house. Actually, on second thought…”
2d DCA: Florida Statutes Section 732.507 Inapplicable Following Divorce When the Will was Executed Prior to Marriage

2d DCA: Florida Statutes Section 732.507 Inapplicable Following Divorce When the Will was Executed Prior to Marriage

Here’s the Story

Here’s the story, of a man named Priever, who, in 2005, executed a will devising real property in Florida to a woman named Gordon. This marked the beginning of a fact pattern which culminated in a 2018 opinion1
Gordon v. Fishman, 253 So. 3d 1218 (Fla. 2d DCA 2018).
out of the Florida Second District Court of Appeal. Priever and Gordon were unmarried at the time the will was executed. The will provided that, if Gordon died before Priever (spoiler alert, he does), then the real property would be devised to Gordon’s two children. Then, two years after the will was executed, Gordon and Priever marry one another. But, as all good things come to an end, the two divorced from one another about 5 to 6 years later. Two years later, Priever passed away (told you). At the time of his death, Gordon was alive, and Priever had no children and no spouse. He did, however, have a father.

Enter Fishman

Robert Fishman, as guardian of Priever’s father, petitioned for administration of Priever’s estate as an intestate (without a will) estate, apparently unaware of the existence of the 2005 will. Fishman was appointed as personal representative of the estate. Following that, Gordon (the person named in the will as the beneficiary of the real property) filed the original 2005 will with the probate court.

Notwithstanding the fact that the will named Gordon as the beneficiary to receive the real property, Fishman asserted that the will should be construed as if Gordon had predeceased Priever. Fishman’s position was based on Florida Statutes § 732.507(2), which reads:

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.

Following Fishman’s urging, the trial court would have deemed Gordon to have predeceased Priever, the practical effect of which would leave her two children as inheriting the home. Gordon objected to this, arguing that section 732.507(2) did not apply because she was not married to Priever when he executed the will. The trial court rejected Gordon’s argument, finding,

that as a matter of law, [the statute] provides that upon the dissolution of their marriage, the will is to be construed as if the former spouse, Silvia Gordon, had died and she is not entitled to any share of the estate.”

Accordingly, the trial court ruled in Fishman’s favor, finding that Gordon was not entitled to take under Priever’s will. Gordon appealed.

Something Seems Fishy

On appeal to the Second District Court of Appeal, Gordon argued that the trial court erred in applying Florida Statutes § 732.507(2) as, by its own plain language, applies only when a “married person” executes a will. Here, Priever was not married when he executed his will in 2005.

Fishman, on the other hand, urged the 2d DCA to ignore the plain and ordinary meaning of the statute, and to look to the legislative intent behind the statute. That, regardless of the fact that Priever was not married when he executed the will, the statute should operate to protect Priever from his “inattention to estate planning details,” and prevent Gordon from taking under the will.

The 2d DCA sided with Gordon, stating:

Reading the statute as urged by Mr. Fishman would extend the reach of section 732.507(2) beyond its express language. We would have to ignore the term “married” and interpret section 732.507(2) to revoke provisions of a will “executed by a person” or provisions “executed by a person before or after marriage.” To construe the statute in a way that would extend or modify its express terms would be an inappropriate abrogation of legislative power.

It’s possible that nobody will ever know Priever’s true intention as to Gordon’s status as a beneficiary following their divorce. With that said, even if the 2d DCA’s decision was exactly what Priever had in mind (a doubtful proposition), the time and money spent by all parties involved getting to this point are wasted resources. Had Priever executed a new will or even just a codicil addressing these matters after he and Gordon divorced, this litigation likely could have been avoided.

Therefore, this case is an excellent reminder of why it is critical to review your estate planning documents with your attorney every few years, or after the occurrence of significant life events such as marriage, divorce, birth of a child, retirement, inter-state relocation, or major career change, etc., to ensure that your estate plan documents match your intentions.

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1.
Gordon v. Fishman, 253 So. 3d 1218 (Fla. 2d DCA 2018).