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What Happens When Part of a Will Fails?

Making the decision to execute an estate plan long before concerns of major illness and frailty appear provides a huge service to a person’s spouse and family. Being able to direct when and how medical decisions are made and property is distributed after death often makes the life transition easier for the family, since the wishes of the deceased are spelled out and no guesswork is necessary. On the other side, leaving the family with no will or other direction about how to handle the estate sparks uncertainty, and typically, legal battles over inheritance. The recent death of pop star Prince, who left no known will, is a prime example of why these documents are so important. However, many people delay putting together an estate plan, seeing it as something that is only applicable to those approaching old age, but few people know when they will die, so it is important to be proactive and to craft estate plans while still building the estate you hope to bequeath. Once the hurdle of deciding to write out an estate plan is overcome, the next crucial step is to ensure any executed will is valid and proper. The invalidity and failure of any part will likely have a ripple effect on the rest of the will’s property distribution plan and derail the deceased’s intent.

Failure of a Provision in a Will

If a provision in a will fails for any reason of law or fact, the property will become a part of what is termed the “residue.” This is any property that is left after all other property specifically distributed under the will’s terms is transferred to the new owner. The residue is essentially a catch-all, and a well-written will includes a clause that indicates which persons receive these remaining assets to prevent disputes among family members over unclaimed property.

Provisions Written under Fraud, Duress, Mistake, and Undue Influence

If a will itself or any provision contained within it was obtained through fraud, duress, mistake and/or undue influence, that section of the will is void and will be treated as if it does not exist. This means that any property distributed under the void provision will likely end up as part of the residue, if the will provides for one, and if not, it will be inherited under intestate succession laws as if the deceased had no will.

Marriages Procured by Fraud, Duress, Mistake, and Undue Influence

Finally, if there is evidence that a spouse enticed a person now deceased into marriage using fraud, duress, mistake, and/or undue influence, the law does not want this spouse to profit from his/her deceit. Consequently, this person loses the rights and benefits granted to surviving spouses unless he/she can show that the couple lived together as husband and wife after the facts surrounding the wrongful behavior was known or the couple otherwise confirmed the marriage. Absent this exception, the spouse no longer has the following rights:

  • entitlement to an elective share or family allowance; preference in appointment as the personal representative; or inheritance rights over homestead or exempt property;
  • rights or benefits granted by a bona fide life insurance policy, or other contractual arrangements where the spouse is the primary beneficiary, unless the spouse is specifically listed by name as the intended beneficiary in the agreement;
  • any rights or benefits given through a will, trust, or power of appointment, unless the surviving spouse is specifically provided for by name; and
  • any immunity from the presumption of undue influence given under state law.

Talk to an Estate Planning Lawyer

Drafting estate planning documents that make sense for your family and financial situation is one of the most important decisions a person can make. It is also vitally important to make sure the documents are drafted properly, which can easily be avoided by working with an experienced estate planning attorney. The Tampa law firm of Bubley & Bubley, P.A. is geared to help families’ chose the right plan for what happens after death. Contact us to schedule a free consultation.

Location & Directions

Bubley & Bubley, P.A. is located in Tampa, FL and serves clients in and around Brandon, Odessa, Tampa, Oldsmar, Land O Lakes, Thonotosassa, Valrico, Wesley Chapel, Lutz, St Petersburg, Plant City & Brooksville, Safety Harbor, Holiday, Trilby, Crystal Beach, Ozona, Apollo Beach, New Port Richey, Clearwater, Tarpon Springs, Port Richey, San Antonio, Spring Hill, Lithia, Pasco County and Pinellas County.

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