v.
Robert FISHMAN, as personal representative of the Estate of Ron Priever, deceased Robert Fishman, as Guardian of Bernard Priever Samuel Gordon and Rebecca Gordon
Silvia Gordon challenges the trial court's order determining beneficiaries and order denying motion for rehearing and to vacate. We have jurisdiction. See Fla. R. App. P. 9.170(b)(5). Because section 732.507(2), Florida Statutes (2015), does not apply to the facts of this case, we reverse and remand.
I. Procedural and Factual Background
In December 2005, Ron Priever executed a will devising property to his then fiancée, Ms. Gordon. If Ms. Gordon did not survive Mr. Priever, the will devised the property to her two children. Some two years later, Mr. Priever and Ms. Gordon married. They divorced in July 2013. Mr. Priever died two years later. He left no children or spouse.
In April 2015, Robert Fishman, as guardian of Bernard Priever, the decedent's father, petitioned for administration, treating the decedent's estate as an intestate estate. Allegedly, the decedent told several of his family members that he destroyed or revoked his December 2005 will because of a premarital agreement and subsequent divorce from Ms. Gordon. The trial court granted the petition and appointed Mr. Fishman as personal representative of the estate. In August 2015, Ms. Gordon filed the decedent's original will with the trial court.
Mr. Fishman moved for entry of an order determining beneficiaries. He argued that, under section 732.507(2), the will was to be construed as if Ms. Gordon had predeceased the decedent. Ms. Gordon objected, arguing that section 732.507(2) did not apply because she was not married to the decedent when he executed the will.
The trial court found "that as a matter of law, [ section 732.507(2) ], provides that upon the dissolution of their marriage, the will is to be construed as if the former spouse, Silvia Gordon, had died and she is not entitled to any share of the estate." Accordingly, the trial court entered an order finding Ms. Gordon's two children and Bernard Priever to be the estate's beneficiaries. Ms. Gordon filed an unsuccessful motion for rehearing. This timely appeal follows.
II. Analysis
Ms. Gordon argues that the trial court erred in applying section 732.507(2) because the statute's plain language makes it applicable only when the testator was married at the time he executed the will. Mr. Fishman counters that Ms. Gordon's position "belies the legislative intent of the statute ..., as well as the case law construing it."[1]
[*1220] We review questions of statutory interpretation de novo. Kumar v. Patel,
The statute before us provides as follows:
Any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise.
§ 732.507(2) (emphasis added). The legislature's use of the adjective "married" to modify "person" is a clear indication that it intended the "person" executing the will to be "married" at the time of execution.[2] Thus, section 732.507(2) applies only when[*1221] the marriage predates the will. The decedent did not marry Ms. Gordon until about fifteen months after he executed his will. Section 732.507(2) does not apply here.
Mr. Fishman argues that this outcome is an unreasonable disregard of legislative intent. In his view, we should ignore the statute's plain and ordinary meaning. Mr. Fishman largely relies on Estate of Ganier v. Estate of Ganier,
Mr. Fishman argues that the decedent "clearly executed [his will] in contemplation of his marriage to [Ms.] Gordon." He contends that when a decedent makes a will in contemplation of marriage, a subsequent marriage does not entitle a surviving spouse to take an intestate share of decedent's estate as a pretermitted spouse under section 732.301.
However, the "in contemplation of marriage" requirement arose as a part of the common law concerning surviving pretermitted spouses. See Estate of Ganier,
Also noteworthy, section 732.507(2) does not include "in contemplation of marriage," or any similar language. We decline Mr. Fishman's invitation to add language to, or otherwise alter, section 732.507(2). If that is to be done, the legislature must do it. See Villanueva v. State,
B. Carroll
Next, Mr. Fishman argues that "the entire purpose of [ section 732.507(2) ] is to protect divorced persons from their inattention to estate planning details." See Carroll,
In Carroll, the court observed:
It is an understatement to say that animosities arise in divorce proceedings which are inconsistent with wills executed when everything was rosy in the marriage. Divorce attorneys typically advise clients to revise their estate plans for the post-divorce world. However, with all the stress of divorce litigation, it is not uncommon for people to resist the idea of their own mortality and procrastinate their post-divorce estate planning. And then they die with a will in place that provides for the former spouse.
Further, Carroll was concerned with the trial court's use of "post-death legal gymnastics to manipulate the issue of whether a will provision 'affects' the former spouse."
C. Conascenta
Now, we turn to Conascenta,
In Conascenta, the testator executed a will devising property to Ms. Conascenta.
Ms. Gordon attempts to distinguish Conascenta, claiming that the parties in that case had a common law marriage at the time of execution. Conascenta noted that the parties "were living and co-habiting together as husband and wife" at the time of will execution.
Still, we are wary of Conascenta's reasoning and cannot rely on it to rule for Mr. Fishman. Ms. Conascenta's argument was based on the fact that her marriage, subsequent[*1223] to the execution of the will, was null and void.
The court did not address whether section 731.101 required the testator to be a husband or wife at will execution, as section 732.507(2) now provides. Seemingly, neither party believed the nature of the relationship at the time of execution was an issue. The parties and courts focused on Ms. Conascenta's argument that she was never legally married to the testator.
We hew to the statute's language. Reading the statute as urged by Mr. Fishman would extend the reach of section 732.507(2) beyond its express language. We would have to ignore the term "married" and interpret section 732.507(2) to revoke provisions of a will "executed by a person" or provisions "executed by a person before or after marriage." "To construe the statute in a way that would extend or modify its express terms would be an inappropriate abrogation of legislative power." State v. Burris,
III. Conclusion
The plain and unambiguous language of section 732.507(2) revokes provisions of a will executed by a "married person." We have no occasion to search for an intent other than that expressed in the clear, unambiguous language of the statute, especially where the decedent executed the will over a year before the marriage. Cf. Carroll,
Reversed and remanded.
LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.
Mr. Fishman also urges us to affirm the trial court's order because the parties' premarital agreement and divorce decree allegedly forbid Ms. Gordon from inheriting from the decedent's estate. At oral argument, Mr. Fishman's counsel stated that both documents were in the court file, but counsel did not know if Mr. Fishman ever entered the documents into evidence in the probate proceedings. Nothing in our record indicates that Mr. Fishman ever preserved the issue by raising the argument below. See Moss v. Moss,
Notably, the legislature's use of the adjective "married" in section 732.507(2) differs from the statutes in other states-where the courts have determined the sequence of the execution of the will and the marriage was irrelevant-as the statutes in those states did not include the adjective "married" or any other language that required the testator to be married prior to the execution of the will. See, e.g., Davis v. Aringe,
Section 731.101 was the previous version of section 732.507(2). Ch. 74-106, § 3, Laws of Fla. Section 731.101 stated:
Will void as affecting surviving divorced spouse. All wills offered for and admitted to probate subsequent to June 11, 1951, made by husband or wife who have been divorced from each other subsequent to the date of said will, shall be made null and void by means of said divorce insofar as said will affects the surviving divorced spouse.
Conascenta,