“Magic” Words To Ensure an Ex-Spouse Remains in Will

by Pessin Katz Law, P.A.

Attorneys often encounter situations in which someone makes a will or designates a beneficiary naming their spouse as the heir or beneficiary, separates from their spouse, fails to make changes to their will or beneficiary designation, divorces, and then dies.  In the case of beneficiary designations, there is virtually no way to prevent a former spouse from taking title to the property unless the deceased was diligent in making a change in beneficiary designation. 

However, in the case of inheritance by will the Maryland legislature provides relief to “non-diligent” former spouses by means of a statute contained in the Estates and Trusts article of the Annotated Code of Maryland.  A recent case closely decided by Maryland’s highest court, albeit with a dissent, makes clear that if one wishes to allow their former spouse to inherit, they had best make that clear.

The facts of Nichols v. Baer, decided October 22, 2013 were simple.  Husband and wife were married in 1965 and lived together until 1996, when they agreed to voluntarily separate. Their separation agreement provided that either party could bequeath his or her property to the other notwithstanding their mutual releases: “either party to this Agreement may, by his or her Last Will and Testament, give, devise or bequeath any part or all of his or her estate to the other.”  In 2003, Husband while he and his spouse remained married, albeit living separately, executed his Last Will and Testament, bequeathing his residuary estate to his wife, by name and not by reference to their then status as husband and wife.  Approximately three years later, they were granted an absolute divorce and within months, husband died. The will was admitted for probate, and husband’s nephew petitioned to be the Personal Representative of the estate, with he and his two siblings identified as the residuary beneficiaries. The former spouse of the decedent challenged the appointment and identification of beneficiaries and was successful, arguing that she was the primary beneficiary and the nephew and his siblings were contingent beneficiaries.  The nephew argued that Section 4–105(4) of the Estates and Trusts Article of the Maryland Annotated Code revoked the bequest to the former spouse because the husband’s will did not specifically mention the divorce (and his intention to allow her to inherit) in spite of the language quoted above allowing each spouse to leave all or part of their estate to the other.

Maryland’s highest court ruled that revocation of a bequest to a former spouse is “…effective upon the occurrence of the triggering factor, the subsequent divorce, …, unless there is ‘provided in’ the will or the [divorce] decree a statement to the contrary, that the decedent intended the bequest even though they were divorced.”  The Court stated that such a position was in accordance with the Legislature’s intent to save divorced spouses from the unintended consequences that flow from not changing their wills after their divorce, which most individuals wish to do.

While this ruling does help those individuals whose divorce has been finalized, it does not apply to individuals who are separated, but not legally divorced.  Those individuals should contact a competent estate planning attorney to have their wills revised to reflect their intentions. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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