When a Spouse Named in a Testament is Divorced from the Testator at the Time of His Death, the Legac
Succession of Bridges
2017-1291 (La. App. 1st Cir. 2/27/18), 243 So.3d 618, writ denied, 2018-0450 (La. 5/11/18), 242 So.3d 567. Don Bridges, Sr. and Pamela Bridges were married but later divorced in 1988. In 2002, fourteen years after their divorce, Mr. Bridges executed a notarial testament in which he left the bulk of his property to Pamela in full ownership. Mr. Bridges also named Pamela as executrix.
In 2005, three years after the execution of the testament, Mr. Bridges and Pamela remarried. They then divorced a second time in May of 2016. Mr. Bridges died three months later in August of 2016.
In April of 2017, Mr. Bridges’ son, Don, sought to annul Mr. Bridges’ testament, to vacate the order appointing Pamela as executor, to have the court recognize his succession rights, and to enjoin all further actions by Pamela.
Paragraph (5) of Civil Code article 1608 provides that revocation of a legacy or other testamentary provision occurs when the testator “is divorced from the legatee after the testament is executed and at the time of his death, unless the testator provides to the contrary.”
The trial court found that Paragraph (5) of Civil Code article 1608 did not apply because Mr. Bridges and Pamela were not married at the time Mr. Bridges executed his testament.
On appeal, Don maintained that Paragraph (5) of article 1608 is silent regarding the marital status of the decedent at the time of the execution of the testament. Don asserted that under the clear wording of article 1608, the appointment of Pamela as executor and the legacy in favor of Pamela were revoked when she and Mr. Bridges were divorced after the execution of the testament.
In contrast, Pamela contended that Paragraph (5) of article 1608 presumes that the testator is married to the legatee at the time of the execution of the testament. Otherwise, the provision would make no sense. Pamela argued that her remarriage to Mr. Bridges after the execution of the testament and their subsequent divorce did not overcome the presumption that Mr. Bridges specified Pamela to be the executor and legatee of his succession. Pamela argued that for Paragraph (5) of article 1608 to apply, Mr. Bridges would have had to be married to her when he executed the testament. As he was not, the trial court appropriately found that article 1608 did not apply and that Mr. Bridges intended for her to be the executor and legatee of his succession.
The court of appeal found that although it was true that Mr. Bridges and Pamela were divorced a second time after the execution of the testament, they were not married at the time of the execution of the testament. Both at the time of the execution of the testament and at the time of his death, Mr. Bridges was divorced from Pamela.
The court of appeal found that under Paragraph (5) of Civil Code article 1608, the status of the parties at the time of the execution of the testament is controlling. Although Paragraph (5) of article 1608 does not specifically state that the parties must be married at the time of the execution of the testament for the provision to apply, it contemplates that the parties are married at the time of the execution of the testament and that a subsequent divorce would revoke the legacy or testamentary designation at issue. As Mr. Bridges and Pamela were divorced both at the time of the execution of the testament and at the time of Mr. Bridges’ death, the court of appeal found that Paragraph (5) of article 1608 did not mandate the revocation of the legacy in favor of Pamela or her appointment as executor.
For these reasons, the court of appeal affirmed the judgment of the trial court.
So, when drafting a will, it would be appropriate to place a provision in the will specifying whether or not a legacy is to be voided if the testator marries a legatee, then divorces the legatee prior to the testator's death.