Divorce, a Stale Will, and a Florida Homestead
Robert, a Florida resident, executed a will in 2015 while married to Alice. The will left 'all of my property to my wife, Alice,' named Alice as personal representative, and contained no other dispositive provisions. Robert and Alice divorced in 2019. In 2021 Robert married Brenda. He died in 2025 survived by Brenda, two adult children from his first marriage, and a condominium titled solely in his name that he had claimed as his homestead. His brokerage account of $900,000 passes by TOD to his children; his 401(k) of $400,000 names Brenda as beneficiary. The 2015 will was never updated. Brenda petitions for administration and claims the entire probate estate, including the condo. The children argue the divorce revoked the will and that Brenda is entitled only to an intestate share. The condo is worth $600,000 and has no mortgage. Robert had no minor children at death.
1. What effect does the 2019 divorce have on the 2015 will, and can Brenda take the probate estate under that will?
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Florida Statutes section 732.507(2) provides that a dissolution of marriage revokes all provisions of a will affecting the former spouse, and the will is construed as if the former spouse had predeceased the testator. The 2015 will's only dispositive gift is to 'my wife, Alice,' and Alice is the named personal representative. The divorce therefore revokes that gift and her nomination. The will has no residual clause, so the revoked gift leaves no effective disposition of Robert's probate estate. Brenda cannot step into Alice's place under the will. A generic reference to 'my wife' might in some cases be read as a status term, but here the will identifies Alice by name, so the gift is personal to her. Because Robert married Brenda after executing the will, Brenda is a pretermitted spouse under section 732.301 unless the will shows an intent not to provide for her, she waived rights, or the will was made in contemplation of marriage. None of those exceptions appears. Brenda's remedy is therefore an intestate share under section 732.102, not the entire estate. Because Robert's descendants are not Brenda's descendants, she takes one-half of the intestate estate; the children take the other half. The TOD account and 401(k) pass by contract and are outside the probate estate for this calculation.
2. How does the condominium pass, and could Robert have devised it to Alice or to a trust?
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Article X, section 4(c) of the Florida Constitution and section 732.4015 restrict devise of homestead. Because Robert was survived by a spouse, Brenda, and no minor child, he could have devised the homestead to Brenda, but he could not devise it to Alice. The devise to Alice is also revoked by the divorce. The condo therefore passes under section 732.401 as intestate homestead: Brenda receives a life estate, and Robert's two adult children receive the remainder per stirpes. The children do not take a present fee simple, and Brenda cannot sell or mortgage the fee without joining the children or obtaining court authority. If Robert had wanted to leave the homestead in trust, the 2018 amendment to Article X, section 4(c) would permit a trust for Brenda's benefit for life with remainder to his descendants, provided the trust gave Brenda a right to occupy or income. A trust for anyone outside that class would not satisfy the constitutional restriction.