MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Judiciary A

By: Representatives Franks, Markham

AN ACT TO PROVIDE THAT DIVORCE OR ANNULMENT SHALL CAUSE PROPERTY IN THE WILL TO PASS AS THOUGH THE FORMER SPOUSE PREDECEASED THE TESTATOR UNLESS THE WILL EXPRESSLY PROVIDES OTHERWISE; TO AMEND SECTION 91-5-3, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. If after executing a will the testator is divorced, the divorce shall cause all property in the will to pass as though the former spouse predeceased the testator, unless the will expressly provides otherwise. The divorce shall also nullify any provision conferring a general or special power of appointment on the former spouse and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise. Property prevented from passing to the former spouse because of this section shall be passed as if the spouse predeceased the testator. Other provisions of the will conferring a power or office on the former spouse shall be interpreted as if the spouse predeceased the testator. Remarriage to the former spouse revives any provisions of the will that were nullified under this section, unless another will has been executed. For the purpose of this section, divorce means any divorce that would exclude the spouse as a surviving spouse within the meaning of Sections 93-5-1 and 93-5-2.

SECTION 2. If after executing a will the testator's marriage is annulled, the annulment shall cause all property in the will to pass as though the former spouse predeceased the testator, unless the will expressly provides otherwise. The annulment shall also nullify any provision conferring a general or special power of appointment on the former spouse and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise. Property prevented from passing to the former spouse because of this section shall be passed as if the spouse predeceased the testator. Other provisions of the will conferring a power or office on the former spouse shall be interpreted as if the spouse predeceased the testator. Remarriage to the former spouse revives any provisions of the will that were nullified under this section. For the purpose of this section, annulment means any annulment that would exclude the spouse as a surviving spouse within the meaning of Section 93-7-1.

SECTION 3. Section 91-5-3, Mississippi Code of 1972, is amended as follows:

91-5-3. A devise so made, or any clause thereof, shall not be revocable but by the testator or testatrix destroying, canceling, or obliterating the same, or causing it to be done in his or her presence, or by subsequent will, codicil, or declaration, in writing, made and executed, or as provided in Section 1 or 2 of this act. Every last will and testament made when the testator or testatrix had no child living, wherein any child he or she might have is not provided for or not mentioned, if at the time of his or her death he or she have a child, or if the testator leave his wife enceinte of a child who shall be born, shall have no effect during the life of any such after-born child and shall be void unless the child die without having been married, or without leaving issue capable of inheriting, and before he or she shall have attained twenty-one (21) years. The estate, both real and personal, so devised shall descend to such child in the same manner as if the testator or testatrix had died intestate, subject, nevertheless, to the bequests made in the last will and testament in case of the death of such child before marriage, or without issue capable of inheriting, and under the age of twenty-one (21) years. When a testator shall leave children born and his wife enceinte, the posthumous child or children, if unprovided for by settlement and neither provided for nor disinherited, but only pretermitted, by the last will and testament, shall succeed to the same portion of the father's estate as such child or children would have been entitled to if the father had died intestate, towards raising which portion the devisees and legatees shall contribute proportionably out of the parts devised and bequeathed to them by the same will and testament.

SECTION 4. This act shall take effect and be in force from and after July 1, 1999.