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Ex-Wife Able to Claim Former Husband's Estate

  • January 28th, 2002

The Court of Appeals of Mississippi rules that a will executed before a couple divorced and divided their property was still valid when the ex-husband died four years later. Hinders, et al. v. Hinders (Miss. Ct. App., No. 2000-CA-01779-COA, Jan. 8, 2002).

In 1993, John and Joyce Hinders created wills leaving everything to each other. The couple divorced in August 1995. As part of the divorce, the Hinders divided their property but made no mention of the wills. Mr. Hinders died in February 1999 without ever canceling the 1993 will or executing a new one. The day after his death, Mrs. Hinders filed her ex-husband's will for probate and began efforts to claim his estate. Mr. Hinders' mother and two of his sisters filed suit alleging that the divorce and property settlement had made the will invalid. The trial court ruled that the will was still valid.

The mother and sister appealed, pointing out that in some states, a divorce accompanied by a property settlement agreement automatically revokes either spouse's pre-divorce will. They also argued that Mr. Hinders' true intention was to revoke his prior will as a part of the divorce because he and his ex-wife lived apart following the divorce and they both had other romantic relationships. Finally, the mother and sisters said Mrs. Hinders was violating the couple's property settlement agreement, which was supposed to settle all property rights or claims between them.

The Court of Appeals of Mississippi agreed with the lower court that the will was still valid. The court pointed out that Mr. Hinders' intentions towards his ex-wife were unclear. There was evidence that he continued some form of relationship with his former wife and expressed concern for her future economic well-being. Moreover, although his will sat in his desk drawer for four years after the divorce, Mr. Hinders made no effort during that time to cancel it or to execute a new one. Finally, the court rejects the argument that Mrs. Hinders breached the property settlement agreement, finding that the will is like a gift from Mr. Hinders to his former wife'”a gift that he had every opportunity to revoke but did not.

Moral: If you get divorced, make sure you change your estate plan. Otherwise, what happens at death may cancel what you did during life.

For the full-text of this decision, go to: http://www.mslawyer.com/mssc/ctapp/20020108/0001779.html.

Local Elder Law Attorneys in Ashburn, VA

Margaret O'Reilly

Margaret A. O'Reilly, PC
Herndon, VA

William Fralin

The Estate Planning & Elder Law Firm PC
Bethesda, MD

Jean Ball

Hale Ball Carlson Baumgartner Murphy PLC
Fairfax, VA


Last Modified: 01/28/2002

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