martindale Avvo Rating  Berk Law Group, P.C. Super Lawyers | Kent S. Berk | Berk & Moskowitz, P.C.

Disqualification

Having even a simple estate plan can help guide a family through grief and prove to be an invaluable resource in efficiently dealing with the assets of the departed loved one. Even after creating a will, however, certain situations can mandate an immediate change to the will’s language and purpose. Some situations are so drastic that the law may presume a certain kind of overriding or default reset of certain provisions so as to protect the will maker’s presumed intent. These automatic changes are technically called “disqualification.”

Disqualification is the law’s way of automatically changing a will when situations change, but the will’s terminology and especially its inclusion of certain people, has not. Before any dispositions may be made, a probate court may disqualify certain beneficiaries from receiving whatever was given in the will or personal representatives from administering the estate.

Why disqualification?

Disqualification may seem to some to be an unnecessary legal or government intrusion on a private party’s affairs. But, the intent of the Arizona disqualification statutes is to create a fallback for anyone who dies with a will, but the will has not been changed to reflect a presumed change in the will-maker’s intent after certain changes in circumstances after the will was made. So, the law protects will-maker’s intent when the family dynamics have changed, but the terms of the will have not.

Rather than a void in the system, the disqualification process provides a safety net of sorts to families during irregular or changed circumstances. For the person or persons disqualified, however, the law’s provisions may seem punitive. Will disputes dealing with disqualifications are common.

When does disqualification occur?

Arizona Revised Statutes 14-2802 through 2804 discuss the different situations where disqualification may occur. A will may be automatically changed by law in the following circumstances:

  • Change in marital status: divorce, annulment, decree of separation; and
  • Murder of the will-maker/decedent.

Where these events occur, the law automatically changes the estate plan and protects the estate of the deceased.

Change of marital status

Most people who create a will during marriage name their spouse as the main beneficiary, and even as the personal representative (executor) of the estate. The law assumes that someone who has intentionally ended a marriage would not want their former spouse to receive the gift under the will or serve as administrator of the estate. So, Arizona law presumes a change in the will-maker’s intent and automatically changes the will, unless the will provides that the change in circumstances does not alter the will.

Specifically, ARS § 14-2802(A) provides: “A person who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, that person is married to the decedent at the time of death. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.”

Effect of divorce decree on probate and the division of property

Under the statute, unless a divorce decree or will provides otherwise, a divorce or annulment automatically

  • revokes any gift in a will,
  • revokes benefits under other instruments; and
  • “severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship or as community property with the right of survivorship and transforms the interests of the former spouses into tenancies in common.”

The statute provides for other revocations upon divorce or annulment, unless the decree or governing instrument provides otherwise.

Murder of the will-maker

In some extreme and tragic situations, loved ones grieve the loss of someone due to intentional and felonious violence. In cases where a decedent has perished at the hands of a beneficiary, the law blocks that person from receiving any part of the estate. This is called a slayer statute. The slayer is disqualified from receiving any benefits from the victim’s estate. Even where the decedent has died intestate (without a will), the slayer statute bars someone who would otherwise receive a share of the estate from receiving anything.

The disqualification statute simply treats the murder as having died before the victim or as having disclaimed, or rejected, that person’s share of property.

The statute also addresses jointly-titled property held at the time of the murder. Typically, property held as joint tenants with right of survivorship automatically goes to the survivor of the joint owners. But, under the slayer statute, murder “severs the interests of the decedent and killer in property held by them at the time of the killing as joint tenants with the right of survivorship or as community property with the right of survivorship, transforming the interests of the decedent and killer into tenancies in common.” This means that the murderer will not receive the victim’s share of the property.

Finding out if disqualification applies in your situation

If you or a loved one are concerned about whether disqualification applies to your probate case, please do not hesitate to reach out and speak to the experienced Arizona probate dispute attorneys at Berk Law Group, P.C.