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Divorce is not the same as predeceasing in probate: Parks v. Johnson (March 1, 2022 NC App)




In Parks v. Johnson the NC Court of Appeals just put the onus on estate planners to draft wills—especially residuary clauses—with even greater care. Bottom line: don’t count on NCGS 31-5.4 (Revocation by Divorce or Annulment) to always effectuate a result where the ex-spouse “predeceased” the Testator, despite that being an oft-repeated explanation of the effect of the statute. While practically accurate in many regards, there is not an literal will construction result equalizing divorce with predeceasing under 31-5.4. All the statue does is “revoke all provisions in the will in favor of the Testator’s former spouse.” It does not remove all mentions of ex-spouses’ names, etc. Thus, a residuary clause will fail when an ex-spouse survives a Testator whose residuary clause is limited by a condition precedent that expressly requires the spouse to “predecease”. The residuary failing, intestacy results.


Facts, Court Analysis & Holding

The 35-year-old will (3 of those years being post-divorce) in Parks is summarized as follows:

  1. Everything to my spouse;

  2. If my spouse predeceases me, then everything to our children; but

  3. If my spouse predeceases and we have no children, then my residuary estate passes to our parents in two equal shares “or their descendants per stirpes”.

Testator died divorced with no children or parents; other descendants existed and are the parties to the suit: Testator’s siblings and his ex-spouse’s siblings.


The court wrestled with two practical questions: (1) Does NCGS 31-5.4’s blue pencil extend to ex-relatives-of-the-ex-spouse? And (2) Does NCGS 31-5.4 cause a spouse to be literally treated as “predeceasing”? (Answered: no and no.)


Holding: the only effect of the statute is to block an ex-spouse from benefiting. Other provisions which make mention of the ex-spouse’s name for other purposes (such as a condition precedent using the ex-spouse’s life as a measuring life) are not revoked by 31-5.4.

Thus, in applying this holding to the will terms above:

  1. Nothing to the spouse, via operation of 31-5.4;

  2. There were no children; and

  3. The condition precedent for the residuary clause failed, the residuary failed and the estate passes by intestacy (to only Testator’s siblings).


Takeaways:

  1. 31-5.4 does not cause an ex-spouse to be literally treated as “predeceasing”.

  2. 31-5.4 does not extend to anyone other than the ex-spouse.

  3. Always advise clients in writing of the risks in not updating their wills after divorces (or in general, once every 5-10 years).

  4. Appreciate the unique risk (intestacy) posed by condition precedents in residuary devises. Consider instead the vaguer: property “not otherwise effectively disposed of”; and

  5. Should we be drafting “In event of divorce” paragraphs? “In the event Testator is divorced from their current spouse at the time of death, above and beyond the statutory effect of 31-5.4 it is the express desire of the undersigned Testator that only a lineal descendant as that term is defined in 29-2(4) of an ex-spouse could ever inherit under this will, but that no other relative of an ex-spouse shall ever inherit. Should the result of any provision of this will otherwise cause the testamentary intent of the preceding sentence to fail, then such provision shall be void.


My thanks to A. David Ervin at Coastal Legal Counsel (Wilmington) and to Mary Euler at McGuire Woods Bissett (Asheville) for their discussions with me about this case.

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