By statute, a divorce voids any will provision benefitting a former spouse “unless otherwise provided for in the will or decree.” Est. & Trusts § 4-105(4). The Court of Appeals, in a split decision, wrestled with the scope of the phrase “unless otherwise provided for in the will or decree.” Nichols v. Baer (October 22, 2013) (Estate of Suiters).
In the vast majority of divorces, of course, a divorced spouse has no interest in leaving his/her former spouse any money in a will. Indeed, that is the rationale for the statutory provision – it assumes a decedent probably no longer wants a bequest going to his/her former spouse. The statute assumes that the decedent neglected to change the will. Accordingly, the statute overrides the language in a will based on a legislatively deemed change of testator intent.
The facts in the Nichols case, however, were unusual. Mr. & Mrs. Suiters were married for over twenty years when they separated. They entered into a separation agreement which provided, interestingly enough, that either was free to provide for the other in his or her will. Although a common provision in marital agreements, one would think it is not so common in separation agreements.
Although they separated, they did not divorce for another ten years. Six years after the separation, Mr. Suiters signed a will in which he left his entire residuary estate to his not-yet former wife. He designated her by name, not by her status as “wife.” About three years after he executed this will, a divorce was granted and shortly thereafter he died.
The remainder beneficiaries took the position that Est. & Trusts § 4-105(4) kicked in to void the bequest to the former spouse. The majority of the Court agreed, and it largely relied on cases from Uniform Probate Code jurisdictions in forming its opinion. The UPC triggers revocation “unless the will provides otherwise.”
The UPC language, however, was rejected by The Henderson Commission when it adopted the “softer” language “unless provided in the will or decree.” The dissent held that ultimately the case turned on intent which is, of course, a fact-based inquiry. The permissive bequest provision of the separation agreement coupled with the will identifying by name the soon-to-be-former-spouse and the fact that the separation agreement had not merged into the decree led the dissent to find that the decedent had not meant his former spouse to be cut out of the will.
It is important to remember that Est. & Trusts § 4-105(4) only applies to voiding provisions in a will. Thus, it was held that the first wife received the IRA over the claims of the second wife when the deceased husband neglected to change the beneficiary designation. PaineWebber, Inc. v. East, 363 Md. 408 (2001). The PaineWebber result would probably control a revocable trust that remains unchanged after the divorce. See Est. & Trusts § 14-102 which does not extend § 4-105 to revocable trusts. Obviously, it is important that newly divorced clients follow up and change beneficiary designations. Unlike with certain non-probate designations, the statute ostensibly covers will provisions thus obviating the necessity to rush out to change a will.
On the whole, Nichols should be a relief to the family law bar. Under the interpretation of the dissenting judges, boilerplate in a separation agreement might permit a former spouse in a bitter divorce to inherit property. The dissent may have made the better “lawyerly” argument; nevertheless a bright-line test is probably the best, and safest, policy outcome.