Southwest Florida's Health and Wellness Magazine Health and Wellness Articles
By James W. Mallonee
In the case of Merli v. Merli, 2022, an interesting set of facts occurred involving a dissolution of marriage and the death of the husband prior to the final judgment of marriage dissolution. Ordinarily, if a final dissolution is not obtained prior to the death of one of the spouses, the assets will flow to the surviving spouse because no dissolution occurred making the distribution of assets follow the lines of an intestate probate action. In this case a partial settlement agreement was reached prior to the husband’s death but not to its entirety. The question is, does the divorce terminate any agreement made prior to the death of one of the spouses become moot. Lacking a pre or post marital agreement, the general answer is yes.
Because no settlement agreement or final termination of the marriage was reached, the surviving spouse was not relieved of her right to serve as personal representative regardless of whether the deceased spouse’s family sought preference in appointment. In essence, all the agreements made before the death of the spouse were thrown out and the laws concerning asset distribution would now be the controlling factor. This change in the situation gave the surviving spouse control over the assets of the estate. More importantly none of the estate protection laws were waived such as an elective share, intestate share, pretermitted share, homestead property protection, family allowance or preference in appointment as personal representative.
Because there was no final agreement as to the termination of the marriage, the court reasoned that all the protection mechanisms applied following the death of the spouse still applied to the surviving spouse. The court determined that the partial settlement agreement was just that, not a complete settlement of all matters of the dispute between the parties. The court turned to Fla. Stat. 732.702, and reasoned that neither spouse explicitly waived their right to any of their marriage rights and thus they were maintained up until the date of the death of the husband.
Would the same outcome have occurred if the husband and wife had engaged in a pre-marriage or post marriage agreement concerning the distribution of their assets? The answer is a strong probability of yes provided that the agreement was fair and not based on intimidation or force. Had the deceased spouse engaged in some form of testamentary device (Will or Trust) the outcome of this estate would likely have been different as well.
So what is to be learned here: if you are terminating a marriage or any contractual obligation, you need to make certain that the dissolution of terms pertaining to the marriage or contractual obligations are complete and not whatever thoughts you can throw on the wall and see what sticks. The courts final words as to this dissolution were these: 1) the marriage was terminated by death and not by final judgment; 2) the partial settlement agreement’s terms did not amount to a binding final decree; and, 3) nothing in the partial settlement agreement indicated an intent by the parties to waive their intestate rights. Had there been a Will or other testamentary document, the outcome would likely have been different.
This article is intended for informational use only and is not for purposes of providing legal advice or association of a lawyer – client relationship
LAW OFFICES OF JAMES W. MALLONEE, P.A.
www.jameswmallonee.com
