A Boutique Trusts & Estates Law Firm

Are You Getting a Divorce? It’s Time to Review Your Estate Plan.

Tuesday, November 12th, 2013

Nichols v. Baer, __ Md. __ (No. 33, September Term, 2011, decided October 22, 2013).

How do you know if it is time to update your Will? Every three years is a good rule of thumb, but a more important rule is to review your will whenever your family has a new birth, death, marriage or divorce. Failure to do so can have unfortunate consequences, as is demonstrated by a recent case from the Court of Appeals of Maryland, in which the judges split 4-3 on the question of whether a bequest was revoked by a divorce obtained after the Will was made.

Jesse and Virginia Suiters married in 1965 and separated in 1996. They apparently had no children. Seven years after they separated, Jesse made a Will in which he gave all of his assets to Virginia. If Virginia were to predecease him, he gave his estate to his sister (or, if she also predeceased him, to his sister’s descendants). Three years later, Jesse and Virginia finally divorced, and Jesse died only a few months after that.

Under Maryland law, a divorce automatically revokes the bequests that the divorcing spouses previously made for each other in their Wills, “unless otherwise provided in the will or [divorce] decree.” Virginia argued that Jesse had not revoked his gift to her because he had “otherwise provided” in both his Will and in the divorce decree. Virginia pointed to the fact that the divorce decree incorporated by reference the parties’ 1996 separation agreement, in which they had agreed that they each “may . . . bequeath any part or all of his or her estate to the other.” Virginia also noted that, in the portion of Jesse’s Will containing the bequest to her, he referred to Virginia my name without referring to her as his “wife.” Virginia won her case before the Orphans’ Court, then lost on appeal to the Circuit Court, then won again on appeal to the Court of Special Appeals.

When the case got to the Court of Appeals (the highest court in Maryland), a bare majority of the court rejected Virginia’s arguments, ruling that the divorce revoked Jesse’s gift to Virginia and that Jesse’s Will gave his entire estate to his nephews. (Jesse’s sister had apparently predeceased him; Virginia also passed away during the litigation.) To the majority, Jesse never “otherwise provided” because neither the decree nor the Will contain any statement indicating an intent that the divorce should not revoke the bequest.

It is unfortunate that Jesse did not update his Will after his divorce, since a one-sentence codicil could have clarified his intent and avoided years of costly litigation.

If you are anticipating or have experienced a recent life event such as birth, death, marriage or divorce, our office would be happy to assist you in making sure a custom estate plan is in place to fulfill your wishes and provide for your loved ones. Please contact us at (410) 828-7775.