CHARLES LAMONTAGNE AND LEO LAMONTAGNE, APPELLANTS,
v.
JAMES W. HUNTER, AS ADMINISTRATOR OF THE ESTATE OF ROBERT S. HUNTER, DECEASED, APPELLEE
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A divorce subsequent to the execution of a will revokes any provisions for the former spouse, allowing contingent beneficiaries to inherit.
The testator divorced his wife after executing a will that left his estate to her, or to his stepsons if she predeceased him. The trial court voided t…
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McNULTY, Judge.
Appellants Charles and Leo Lamontagne, step-sons of the deceased testator Robert S. Hunter who divorced appellants’ mother subsequent to the execution of his will, take this appeal from an order of the circuit court declaring the will null and void so as to cut them out as contingent legatees. We reverse.
The decedent devised his entire estate to his wife. He further provided that in the event she predeceased him her sons, the appellants, were to take equal shares of his entire estate. At the instance of the dece dent’s brothers, James (the appellee Administrator) and Raymond, the trial court voided the will and declared that the estate passed to them as the decedent’s heirs at law.
This case is controlled by our decision in In re Estate of Fredericks.
In that case Fredericks left the residence of his estate to his wife and, in the event she predeceased him, to the Shriners Hospital for Crippled Children. As in this case, the testator and his wife were divorced but the will was left unchanged. This court followed the rationale of our Supreme Court in Iles v. Iles
and held that Fredericks’ clear intent was that the Shriners Hospital was to receive the residuary estate if his wife were not available to take under the will. “The divorce”, we said, “took the wife out of the picture just as surely as would her death.”3 So it is here. The will controls; the divorced wife is out; and appellants take as contingent residuary legatees, the contingency in law having occurred.
In view whereof, the order appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.
BOARDMAN, C. J., and HOBSON, J., concur. . 311 So. 2d 376 (Fla.2d DCA 1975).
. 159 Fla. 493, 29 So. 2d 21 (1947).
. See n. 1, supra, p. 379; see also Steele v. Chase, 151 Ind.App. 600, 281 N.E. 2d 137 (1972).
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Citator
Cited By
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Hulsh v. Rea R. Hulsh, 431 So. 2d 658 (Fla. 3d DCA 1983)…and that, therefore, Marcella’s waiver in the agreement disqualifies her from taking under the will, that disqualification is deemed to be the functional equivalent of her death, which will activate the provision for Fred.5 Cf. LaMontagne v. Hunter, 341 So. 2d 1074 (Fla. 2d DCA 1977) (where will made sons of testator’s wife contingent beneficiaries in event of her death, divorce between testator and wife “took the wife out of the picture just as surely as would her death,” activating the right of the stepsons…
Authorities Cited
- Iles v. Malvern W. Iles, 158 Fla. 493 (Fla. 1947)
- In re Est. of Edward A. Fredericks v. Shriners Hosps. FOR Crippled Child., Inc., 311 So. 2d 376 (Fla. 2d DCA 1975)