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Birmingham Bar Association Bulletin | Spring 2015

Divorce law Douglas L. McWhorter and Christen D. Butler, Dominick Feld Hyde, P.C. The Effect Of A Divorce Upon A Comprehensive Estate Plan Inter Vivos Trusts Although Ala. Code § 43-8-137 revokes any benefit for a divorced spouse under a Will, historically there was no similar Alabama statute revoking a divorced spouse’s interest as a beneficiary of an inter vivos trust. When drafting such trusts for their clients, attorneys would often include a provision in the instrument itself that a divorce between the grantor and the grantor’s spouse would eliminate the spouse as either trustee or beneficiary. It is unclear the effect of the recently adopted Alabama Uniform Trust Code on such a trust in the absence of such a “divorce kick-out clause.” It may perhaps be argued that the trust rules of construction in Ala. Code § 19-3B-112 and the incorporation therein of Articles 8 and 9 of the Alabama Probate Code, which would include Ala. Code § 43-8- Robert Burns, the Scottish poet, once observed: “The best laid estate plans of mice and men often go awry.” Assume that, after the attorney has completed a comprehensive estate plan for a client, the client is the subject of an unforeseen divorce. What effect does that divorce have upon the client’s estate plan? While it would always be desirable to revise the estate plan in its entirety following a termination of the marriage, what are the consequences of a failure to implement such revisions prior to the death of the divorced client? Spousal Statutory Rights At Death A spouse in Alabama is afforded certain statutory rights in the probate estate of a decedent. These rights include an intestate share when there is no Will; an elective share; an omitted spouse share; a homestead allowance of $6,000; a personal property exemption of $3,500; and a family allowance.1 In the event of a divorce, the Alabama Probate Code comes to the aid of the deceased client with respect to these statutory rights. Section 43-8-252 provides: “A person who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse for the purpose of the aforementioned statutory rights unless, by virtue of a subsequent marriage, he is married to the decedent at the time of death.” The Will The cornerstone of a comprehensive estate plan is often the Will. The Alabama Probate Code expressly addresses the effect of divorce upon a Will in Ala. Code § 43-8-137. It states that, unless the Will expressly provides otherwise, the divorce “revokes any disposition or appointment of property” made to the former spouse; nullifies any general or special power of appointment conferred upon the former spouse; and cancels any nomination of the former spouse as executor, trustee or guardian. For the purposes of the Will, the divorced spouse is treated as having predeceased the testator. Therefore, a testator who later undergoes a divorce enjoys the protection of statutes against the former spouse with respect to the probate estate. 16 Birmingham Bar Association


Birmingham Bar Association Bulletin | Spring 2015
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