In the immortal words of Marvin Gaye, there are only three things for sure: "Taxes, death, and trouble." So, it should not come as a surprise when one of these certainties in life affects a Florida divorce. Taxes usually have some place in the discussion of equitable distribution or support. Trouble is usually present in some form given that trouble was what caused one of the spouses to file for divorce. And death sometimes happens right smack dab in the middle of it all. The one thing for sure, is that it usually causes trouble.
When a spouse dies prior to the final judgment in a Florida divorce case, the divorce action "dies" as well (Fernandez v. Fernandez, 648 So. 2d 712; Malave v. Malave, 178 So. 3d 51)). No divorce is necessary because the marriage was terminated by death (Marlow v. Brown, 944 So. 2d 1036). So, if you are in the middle of a divorce and no final settlement agreement has been signed by you and your spouse, probate will move forward as if no divorce action had been filed.
But what happens if the spouse dies during the divorce and you have a preliminary or temporary agreement, albeit one lacking detail? As was the case in Marlow, that temporary or preliminary agreement may be viewed by the court as interlocutory or provisional and thus null and void upon the dismissal of the case. This is because interlocutory orders or agreements in the words of the Marlow court are "a step in the direction of a final solution" and not meant to be the final word on any given subject at issue in the divorce. In Marlow, the couple signed a temporary mediation agreement on September 1, 2001, but it only stated that the marital assets would be divided equally, with the exception of jewelry and furs to the Wife and jewelry and guns to the husband. Later, on January 21, 2003, the Court issued an order specifically identifying the marital assets but without valuing them, and stated that those assets would be divided "fifty-fifty."
Approximately five months later, the husband died. At that time, no valuation of the assets had been performed, no plan of equitable distribution had been created, and no final judgment of dissolution (divorce) had been entered. The husband's personal representative for the estate sought to enforce the temporary agreement and the order identifying and dividing the marital assets. The trial court in the dissolution required the wife to maintain "status quo" with all the assets for 30 days. The probate court found that the temporary agreement survived the husband's death and was binding on the wife.
However, at the end of the day, the appellate court found that the mediation agreement and the later order were lacking detail and interlocutory or temporary/provisional in nature. Therefore, neither survived the death of the husband and did not control the disposition of the property.
The take-away from this case should be that we can't count on tomorrow. The agreements you sign in your divorce today should be as complete as possible. Don't wait for the next day to get specific with valuations, property descriptions, and other necessary details. I know it can seem a daunting task and especially so if the agreement was hard-won and you are already tired. However, if you solidly agree on a little something - even if you are taking baby steps toward resolution - that agreement, should be as detailed as possible and correctly executed. In the Marlow case, with the exception of bank and investment accounts that were divided during the pendency of the case, the wife received all the assets - both marital and non-marital. Despite the fact that the wife and husband were on their way toward divorce, the husband's family received none of what would be his share of the assets if the final judgment had been granted prior to his death.
So, now we know that orders and agreements deemed interlocutory by the court will essentially die with the cause of action when a spouse dies during a Florida divorce. In Topol, a Fourth District Court of Appeal case (88 So. 3d 341), the question asked was: Whether an action taken by a spouse pursuant to an order issued during the pendency of the divorce case, would be deemed null and void if the spouse died before the final judgment was granted?
The answer to this question is "yes."
The husband in Topol executed a change of beneficiary on his IRA a month after the divorce was filed. He removed the wife as the primary beneficiary and replaced his daughters as the co-primary beneficiaries. There was no court order in place prohibiting this change. When the wife found out about the change, she filed a motion for contempt. The trial court found the husband in contempt for failing to notify the court of the change, but did not find him in contempt for making the change. An order was issued requiring the husband to make the wife his primary beneficiary. The husband eventually complied after twice refusing. And soon after re-designating his wife as beneficiary, he died. No final judgment had been entered and the dissolution action was dismissed.
The daughters of the husband sought the trial court to declare the husband's designation of the wife as beneficiary null and void because the interlocutory order requiring the husband to take that action was null and void as the dissolution action had been dismissed. The wife acknowledged that the order was temporary and only meant to preserve the status quo during the pendency of the action. However, she argued that that even if the order didn't survive, the action made by the husband pursuant to the order did.
Because a Florida court had never "squarely" addressed this issue, the appellate court drew upon case law from other States. It concluded specifically, that a "designation of beneficiary change made pursuant to a court order seeking to preserve the status quo in a dissolution of marriage proceeding does not survive the abatement of the proceedings upon the death of one of the parties." And now we have the answer to that compelling question. The daughters of the deceased husband were the rightful beneficiaries of the husband's IRA.
As you can see from the case law discussed, the issue of death and divorce is not a simple one. Should you have questions related to your Florida divorce or Florida probate, I would be honored to help you understand the intricacies of the law on these subjects. Please call 386-672-8081 today to schedule your consultation with Mara Law, P.A. We look forward to meeting you.
Mara Law, P.A. is located in Ormond Beach, FL and serves clients in and around Bunnell, New Smyrna Beach, De Leon Springs, Palm Coast, Daytona Beach, Flagler Beach, Barberville, Pierson, Seville, Port Orange, Flagler County and Volusia County.
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