How can a will be revoked in Florida?

Full Question:

My husband and I are getting divorced. We both want to revoke our wills and make a new one later after the court proceedings get over. How can a person revoke his/her will in Florida?
03/14/2017   |   Category: Wills and Es... ยป Revocation   |   State: Florida   |   #33910

Answer:

You and your husband may revoke your respective wills in many ways. There is some law in Florida on this.
  1. A will may be revoked either in part or in entirety by a subsequent new will, which is inconsistent with the old/prior will.
  2. The testator can make a new will and state in it that the old will is revoked. This would also be a valid revocation of the old will.
  3. Another way of revocation is by burning, tearing, canceling, defacing, obliterating, or destroying the will with the intention and for the purpose of revocation. The testator himself can do this act of revocation or he can get it done by some other person in his presence.
  4. If the testator divorces his/ her spouse or if the testator marriage is dissolved, annulled then all the provisions with regard to the former spouse would get canceled.
  5. The revocation by the testator of a will that revokes a former will shall not revive the former will.
  6. If the testator marries after executing his/her will, but fails to add the spouse in the will, such a spouse will get a share equal to what they would have got if the testator had died without leaving a will.
  7. If the testator had kids or adopted kids after the execution of the will, such kids would get a share equal to what they would have got if the testator had died without leaving a will, unless:
    1. It appears from the will that the omission was intentional; or
    2. The testator had one or more children when the will was executed and the testator gave majority of his estate to the other parent of the pretermitted child.
 
For more information on wills and probate, have a look at the laws mentioned below.
 
Fla. Stat. § 732.505:
Revocation by writing.
A will or codicil, or any part of either, is revoked:
     (1) By a subsequent inconsistent will or codicil, even though the subsequent inconsistent will or codicil does not expressly revoke all previous wills or codicils, but the revocation extends only so far as the inconsistency.
     (2) By a subsequent will, codicil, or other writing executed with the same formalities required for the execution of wills declaring the revocation.
 
Fla. Stat. § 732.506:
Revocation by act.
A will or codicil is revoked by the testator, or some other person in the testator's presence and at the testator's direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation.
 
Fla. Stat. § 732.507
Effect of subsequent marriage, birth, adoption, or dissolution of marriage.
(1) Neither subsequent marriage, birth, nor adoption of descendants shall revoke the prior will of any person, but the pretermitted child or spouse shall inherit as set forth in ss. 732.301 and 732.302, regardless of the prior will.
(2) Any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise.
 
Fla. Stat. § 732.508 :
Revival by revocation.
(1) The revocation by the testator of a will that revokes a former will shall not revive the former will, even though the former will is in existence at the date of the revocation of the subsequent will.
(2) The revocation of a codicil to a will does not revoke the will, and, in the absence of evidence to the contrary, it shall be presumed that in revoking the codicil the testator intended to reinstate the provisions of a will or codicil that were changed or revoked by the revoked codicil, as if the revoked codicil had never been executed.
 
Fla. Stat. § 732.301:
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.
 
Fla. Stat. § 732.302:
Pretermitted children.
When a testator omits to provide by will for any of his or her children born or adopted after making the will and the child has not received a part of the testator's property equivalent to a child's part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless:
     (1) It appears from the will that the omission was intentional; or
     (2) The testator had one or more children when the will was executed and devised substantially all the estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the will.
The share of the estate that is assigned to the pretermitted child shall be obtained in accordance with s. 733.805.

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