Revocation Upon Divorce

Background: Michigan’s revocation of a devise or bequest upon divorce statute provides that the divorce or annulment of marriage revokes: (i) a disposition or appointment of property made by a divorced individual to his or her former spouse in a governing instrument and a disposition or appointment created by law or in a governing instrument to a relative of the divorced individual’s former spouse. [MCL 700.2807(1)(a)(i) and (ii).] In the case of such a revocation by virtue of a divorce, the former beneficiaries are treated as having disclaimed their interests in the decedent’s Will or Trust.

Relative: While Michigan’s statute [based on the Uniform Probate Code] is pretty straightforward, courts around the country continue to struggle either with the scope of the term relative who is disinherited by virtue of the divorce, or when such relatives are residuary beneficiaries under a class bequest.

In some situations, the state that has adopted the Uniform Probate Code,  has not adopted the most recent version of the UPC to also disinherit relatives when there is a divorce. Such was the case with a recent Minnesota decision.

In the Matter of the Estate of Mathew Joseph Tomczik, Deceased, Minnesota court of Appeals, No. A21-1420 (May 23, 2022.)

Facts: Mathew and Sara were married in 1992. They divorced in 2019. Mathew did not remarry, and he had no children before his death in 2021. Sara is still living. She, too, has no children. Sara’s heirs under Minnesota’s intestate succession statute are her parents, Calvin and Patricia.

Will: Mathew executed a Will in 1995 which remained in place until his death. Mathew’s Will named Sara as the primary beneficiary of his residuary estate. That Will provided that if Sara does not survive Mathew, the residue of his estate is to be distributed as follows: “If any interest is not effectively disposed of by the preceding provisions of this article, one half (1/2) to my heirs-at-law and one half (1/2) to my wife’s heirs at law.”

Petition to Admit the Will: After Mathew’s death, his brother as Personal Representative petitioned the probate court to admit the Will. In the petition, the PR identified Mathew’s siblings as his heirs and devises. The PR represented in the same petition that Sara had no legal interest (due to the divorce) and the PR did not identify Calvin and Patricia as Sara’s ‘heirs.’ Calvin and Patricia objected to the PR’s petition because, as Sara’s heirs, they had been wrongfully omitted as devisees in the Will.

Issue: Did Minnesota’s revocation on divorce statute, which requires that the probate court to consider the former spouse to have died immediately before the dissolution of the marriage,  also cause the unambiguous residual devise to heirs of the former spouse to fail?

Probate Court: The trial judge held for the PR. The judge found that Sara’s parents, as her heirs at law, failed to qualify as devisees. The judge found that the phrase ‘my wife’ was an express term that indicated an intent the devise to my wife’s heirs‘ was contingent on Mathew and Sara remaining married.

Court of Appeals: The Court of Appeals reversed the probate judge, finding that Sara’s parents were entitled to share in the distribution of their former son-in-law’s estate.

Limited Scope of Statute:  Minnesota did not adopt the 1990 version of the UPC which expanded a former spouse’s revocation to include any devise ‘to a relative of a divorced individual’s former spouse.’

“We cannot ignore the legislature’s omission of this provision…The law is unambiguous that only devises to a former spouse are revoked following dissolution of the marriage, and no other part of the will is revoked by this change in circumstances. And, treating the former spouse as deceased immediately before the dissolution when interpreting the will does not revoke other devises.”

Dissent: A strong dissent was written by one judge. He concluded that the since Sara, the divorced spouse, is alive and did not in fact predecease Mathew,, the bequest to Sara’s heirs-at-law in the residual clause of Mathew’s will was never triggered. Specifically, heirs-at-law are defined solely by the marriage relationship between Mathew and his then-wife, Sara.

This judge made an interesting observation. What if Sara had remarried? Under the majority of the appeals panel’s reasoning, Sara’s new husband would be a beneficiary of a portion of Mathew’s residual estate- an outcome that would undoubtedly be contrary to Mathew’s intent and the intent of the Minnesota statute.

Conclusion: Michigan’s revocation on divorce statute is more than a rule of construction. It is a rule that governs substance as well as interpretation of a governing instrument. Courts will continue to struggle to apply the revocation statute and will often have to resort to extrinsic evidence to determine the testator/settlor’s intent whether to disinherit the relative of their former spouse. See In re Estate of Fink, Michigan Court of Appeals, No. 316540, July 24, 2008.