April 2010 Archives

April 18, 2010

Separation and Divorce, A Time To Think About Your Will

Maryland Divorce Lawyers and their clients need to keep in mind issues related to estate planning that may or may not be impacted by separation and divorce. A recent decision by the Maryland Court of Appeals in
Friedman vs. Hannan interpreted Section 4-105 of Estates and Trusts Article. This section provides that upon divorce, provisions of a will relating to a former spouse and only the provisions relating to the former spouse are revoked. The decedent, James Patrick Hannan had made a will while married but divorced before his death. The question involved bequests he made to immediate family members of his wife.

The court upheld the decision of courts below in invalidating the bequests. It held that the effect of divorce on bequests to a spouse's relatives must be handled on a case by case basis. In this case, the decedent had not formed a close personal relationship with wife's relatives. In making its ruling, the court noted that many divorces are acrimonious "with acrimony spilling over to the former spouse's family". The court also noted that the ruling might have been different had there been evidence of a "close personal relationship" with the decedent.

Individuals who are separated but not yet divorced need to keep in mind that Section
4-105 is not triggered until a final divorce decree is entered. A spouse can take under a will despite the separation. Furthermore unless there is a waiver of rights, such as usually occurs in a separation agreement, the surviving spouse can not be totally cut out of the will. He or she is eligible for a minimum share of the decedent spouse's estate. That issue can be complex and is the subject of a prior posting.