Ganier's Estate v. Ganier's Estate, 60886

• Decision Date: 29 July 1982
• Docket Number: No. 60886,60886
• Parties: ESTATE OF Frederic F. GANIER, Petitioner, v. ESTATE OF Emma Kennedy GANIER, Respondent.
• Court: Florida Supreme Court

Page 256

418 So.2d 256

ESTATE OF Frederic F. GANIER, Petitioner, v. ESTATE OF Emma Kennedy GANIER, Respondent.

No. 60886.

Supreme Court of Florida.

July 29, 1982.

John R. Godbee, Jr. of Coble, McKinnon, Rothert, Barkin, Clayton, Vukelja & Godbee and Ollie Lancaster, Jr., Daytona Beach, for petitioner.

Richard S. Graham of Landis, Graham, French, Husfeld, Sherman & Ford and W. Richard Every, Daytona Beach, for respondent.

OVERTON, Justice.

This is a petition to review the decision of the Fifth District Court of Appeal in Estate of Ganier v. Estate of Ganier, 402 So.2d 418 (Fla. 5th DCA 1981), which we find directly conflicts with In re Steinert's Estate, 137 So.2d 856 (Fla. 2d DCA 1962). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

The issue concerns the rights of a surviving spouse in the estate of the decedent spouse whose will was executed prior to their marriage. It requires a construction and interpretation of Florida's pretermitted spouse statute, section 732.301, Florida Statutes (1979), as it relates to the Florida case law in force before the enactment of the Florida Probate Code of 1933. For the following reasons, we approve the interpretation of section 732.301's predecessor statute in Steinert's Estate, that a spouse is protected and entitled to an intestate share of the decedent spouse's estate under this statutory provision unless the will executed prior to marriage provides for the named surviving spouse and was executed in contemplation of marriage to that spouse. We quash the opinion of the district court in the instant case.

This case arose as the result of the marriage of two senior citizens, Emma Kennedy and Frederic Ganier. They met in 1973, when she was 79 years old and he was 76 years old, became close friends, and eventually shared a joint bank account from which they paid their living expenses. In January, 1977, Mrs. Kennedy executed a will which included a provision bequeathing two of her personal bank accounts to Fred Ganier. Mrs. Kennedy and Mr. Ganier were married approximately eighteen months after this will was executed, in July, 1978. Shortly after the marriage, Emma Ganier suffered a stroke; she was declared incompetent in November, 1978, and, on December 16, 1978, Mr. Ganier was appointed her guardian. In October, 1978, before she was found incompetent, Mrs. Ganier closed one of the bank accounts she had bequeathed to Mr. Ganier, and, after he became his wife's guardian, Mr. Ganier had the second account bequeathed to him transferred to Mrs. Ganier's guardianship account. Mr. Ganier expended almost all the funds from the guardianship account prior to Mrs. Ganier's death, which occurred January 7, 1979.

When Mrs. Ganier's 1977 will was admitted to probate, Mr. Ganier filed a petition in the trial court for a determination of beneficiaries. In this petition, Mr. Ganier asserted that he was entitled to an intestate share of his wife's estate because he was a pretermitted spouse within the meaning of section 732.301, Florida Statutes (1979), which provides:

Pretermitted spouse.--When a person marries after making a will and the spouse survives the testator, the surviving spouse shall receive a share in the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate, unless:

(1) Provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement;

(2) The spouse is provided for in the will; or

(3) The will discloses an intention not to make provision for the spouse. The share of the estate that is assigned to the pretermitted spouse shall be obtained in accordance with s. 733.805.

At the hearing, Mr. Ganier testified that he and Mrs. Ganier did not discuss marriage until long after the will in question was executed. No evidence was offered to refute this testimony.

The trial court determined that Mr. Ganier was a pretermitted spouse under the statute, finding that the two bank accounts Mrs. Ganier had left to Mr. Ganier in her will were not controlling, and stating:

[S]aid provision in testatrix's Last Will and Testament did not constitute a provision for Frederic F. Ganier, also known as Fred Ganier, as testatrix's spouse, within the purview of Section 732.301(2), Florida Statutes. No testimony or evidence was offered in this cause to support the view that testatrix contemplated marriage to petitioner, Frederic F. Ganier, also known as Fred Ganier, at the time of the execution of her will. Said reference to petitioner was not made to him in the prospective status as husband of the testatrix; therefore, even though petitioner who was designated by name as a beneficiary in testatrix's will, but who after will was executed, became testatrix's husband, was not "provided for in the will" within said statute limiting right of pretermitted surviving spouse to take a spouse's intestate share against decedent's will. See In re Steinert's Estate, Florida App., 137 So.2d 856.

The trial court alternatively found that the two bank accounts devised to Mr. Ganier did not exist when Mrs. Ganier died so that there was no provision in the will for Mr. Ganier because the specific bequest had "lapsed."

The district court, in a split decision, reversed, finding that section 732.301(2) requires only that the surviving spouse be "provided for" in a will executed before marriage, and rejected the trial court's conclusion that this statutory provision would apply only if Mrs. Ganier had contemplated marriage to Mr. Ganier at the time she provided for him in her will. The district court, in reversing, found no basis for reading into Florida's pretermitted spouse statute the prior case-law requirement that the provision in the will be made "in contemplation of marriage." The district court recognized that this holding was in direct conflict with the decision of the Second District Court of Appeal in Steinert's Estate, but concluded that the Second District had receded from Steinert's Estate in In Re Livingston's Estate, 172 So.2d 619 (Fla. 2d DCA 1965). We disagree.

Florida courts early recognized the rule of law which developed to prevent the inadvertent disinheritance of a spouse whom the testator had married after executing a will. ¹ Our case law distinguished between a man's will and a woman's will and was expressed by this Court in two early cases. In Belton v. Summer, 31 Fla. 139, 12 So. 371 (1893), we held that a man's previously executed will was revoked by a subsequent marriage and the birth of a child, unless the will was executed in contemplation of marriage. In Colcord v. Conroy, 40 Fla. 97, 23 So. 561 (1898), we held that a woman's will was revoked by her marriage alone unless it was executed in contemplation of marriage. Other states had similar rules of law and many have codified these rules in statutes providing that, upon subsequent marriage, the will of either spouse is revoked unless the will provides for the surviving spouse or evidences the testator's intent not to so provide. ² In some states, the statute itself requires that provision be made "in contemplation of marriage," while in other states, the courts have read the requirement into the statute. ³ The purpose of these statutes is the same as that of our case law: to avoid the inadvertent disinheritance of a spouse whom the testator married after executing a will.

This rule, with its total revocation provisions, solves one problem, that of protecting the surviving spouse's interest in the decedent spouse's estate by assuring that the surviving pretermitted spouse receives an intestate share of the estate. But, in doing so, it creates another problem by revoking the entire will. This results in all beneficiaries under the will who are not entitled to intestate distribution being foreclosed from receiving any bequest or devise.

To achieve a more equitable balance between the interests of the surviving spouse and the interests of the takers under the will, the Florida Legislature modified the revocation rule in the Probate Act of 1933, CHAPTER 16103, LAWS OF FLORIDA. SECTION 11⁴, chapter 16103, provides:

MARRIAGE AFTER EXECUTION OF WILL.--When a person marries after making a will, and the spouse survives the testator, such surviving spouse shall receive a share in the estate of the testator equal in value to that which such surviving spouse would have received if the testator had died intestate, unless provision has been made for such spouse by marriage contract, or unless such spouse is provided for in the will, or unless the will discloses an intention not to make such provision. The share of the estate which is assigned to such pretermitted spouse shall be raised in accordance with the order of appropriation of assets set forth in this Act.

Section 15, chapter 16103, provides: "Neither subsequent marriage nor subsequent marriage and birth of issue shall revoke the prior will of any person; but the pretermitted child or spouse shall inherit as set forth in this Act regardless of such prior will." By these enactments, the legislature superseded prior case law in order to protect beneficiaries under the will from complete termination of their bequests. We find that the legislature, in modifying our judicially-established rule, had no intention of eliminating the "in contemplation of marriage" requirement in circumstances where the will provides for the surviving spouse, but was not made with the understanding that it was for the individual as a surviving spouse. Neither of these statutes requires such a construction, and the substance of sections 11 and 15 has not been changed since the Probate Act of 1933. These sections are now codified as sections 732.301 and 732.507 of our current law. ⁵

Section 732.301(1)-(3) simply defines statutorily the "in contemplation of marriage" requirement. These three statutory provisions set forth the methods by which a will executed prior to marriage can be valid as to the...