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Marital Separation Does Not Invalidate Utah Woman’s Trust

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Jess and Sharon Groesbeck were married in 1959, and raised five children in Utah. Like many couples who have been persuaded of the value of living trusts in the past few decades, they chose to use the popular estate planning device to avoid probate and simplify their estate planning. They executed identical living trusts in 1988, each naming the other as the primary beneficiary of their respective estate plans.

A year later, the Groesbecks separated. Sharon Groesbeck filed a divorce proceeding, but did not pursue the divorce. The couple did agree to divide their property, but specifically agreed that their existing estate plans (the two trusts) would remain in effect. The divorce proceeding was then dismissed.

The Groesbecks never lived together again. Sharon Groesbeck died suddenly in 1991 of a stroke.

Jess Groesbeck sought and obtained appointment in the Utah courts as his wife’s personal representative. The court accepted her will into probate. Like most people who establish living trusts, she had signed a “pourover” will leaving her entire estate to the trust. The Groesbeck children did not object to the admission of the will to probate.

When it came time to settle the estate and distribute the assets according to the terms of the trust, Jess Groesbeck asked for the court’s approval for the distribution. The children objected, arguing that Mr. and Mrs. Groesbeck had entered into a full settlement of all their property interests, and that Jess Groesbeck could not receive the benefit of his wife’s property after her death.

After a hearing, the trial court ruled that Sharon Groesbeck’s trust was “illusory” because it did not impose any duties on Mrs. Groesbeck during her life. In other words, the court decided that nearly all revocable living trusts in Utah were invalid.

On appeal, the Utah Supreme Court disagreed with both the trial judge and the Groesbeck children. The higher court found that there is nothing illusory about trust duties, and that the Groesbecks had not completely settled all their property disputes. In other words, despite the marital separation and the filing of a divorce proceeding, Sharon Groesbeck’s will and living trust remained valid and unamended.

If the Groesbecks had lived in any other state, the result would probably have been the same. The mere filing of a divorce proceeding, and even the separation, would probably not result in a revocation of either a will or a living trust.

Arizona law, like that of most states, does provide that a completed divorce revokes a pre-existing will in favor of the former spouse. With the growing popularity of living trusts, that law was extended two years ago to include them, as well as life insurance and other beneficiary designations. Of course, property settlement agreements in the course of the divorce may change some of the law’s default provisions.

Even with changes in the law, divorced spouses should not assume that their documents will be properly interpreted. Recently divorced spouses should make prompt changes in their estate plans, taking into account their changed situations.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.