Estate Planning Needs After Divorce In Florida
The process of going through a divorce can involve numerous changes in household size and structure. In many cases individuals navigating the divorce process will also make substantial changes to the way their financial accounts are organized and who has access to each of them. If you have recently gone through a divorce in Florida, or if you are engaged in a Florida divorce right now, you may also wish to consider making updates to your estate planning documents to ensure that they accurately reflect both your current wishes and the composition of your post-divorce estate. The experienced team at Loughlin Law, P.A. assists residents of the Sunshine State with a variety of estate planning needs both during and after divorce. Schedule a consultation with a Florida estate planning lawyer by calling our office at 561-677-8384 today.
Is a Will Void After Divorce in Florida?
A Last Will and Testament is an essential and in some respects a foundational estate planning document that designates beneficiaries to receive the individual’s assets and nominates an executor to submit the Will to probate and carry out the final administration of the estate. Married couples frequently nominate each other to the executor’s role, and it is also very common for a married testator (the person who creates and signs the Will) to designate their spouse to receive some or all of the assets remaining in their estate once debts have been settled through the probate process.
Florida law specifies, under § 732.507 Fla. Rev. Stat. (2023), that after divorce, any provision in the Will that involves the testator’s former spouse will be handled as if the spouse in question had died at the time the divorce was granted – even if the Will was actually attested before the marriage took place. Some Florida testators may find this statute reassuring, as it means that their ex cannot “accidentally” inherit from their estate. At the same time, however, this blanket invalidation may not align with every testator’s wishes. Individuals who have gone through amicable divorces and would like to leave their former spouses a portion of their personal property will need to take steps to update their Wills to make such provisions explicit.
Estate Planning During a Florida Divorce
In cases where a Florida decedent’s Will names their ex-partner as a beneficiary of their estate, or nominates their former spouse as the executor of the Will, the Florida probate courts will proceed as if the former spouse mentioned in the Will had predeceased the testator. However, individuals going through a Florida divorce should be aware that the date a probate court treats as the ex-spouse’s effective date of death (for purposes of probate) under § 732.507 will be the day their divorce from the testator was final – not the date on which either party initiated divorce proceedings in a Florida court.
Divorces can be complex legal proceedings involving multiple steps and extended hearings and negotiations that may drag on for months or even years. As a result, while a former spouse in Florida who wishes to leave a bequest to their ex will need to create a new Will after divorce to ensure that the provisions regarding the former spouse will be upheld during the probate process, spouses who are still going through the divorce process may wish to update their Wills and other estate planning documents without waiting for the divorce to be final, if their preferences regarding beneficiary designations, execution of the Will, health care surrogates, and other important matters are readily recognized and followed.
Estate Planning Documents To Update During and After a Florida Divorce
The specific set of documents an individual may need to update after filing for (or being served with papers in) a Florida divorce will vary depending on the unique circumstances involved and the way the couple handled financial arrangements during their marriage. However, there are a few key documents in which it is very common for married partners to name each other to key roles, and even in the most congenial of divorces it can be a good idea to take the initiation of divorce proceedings as an occasion to re-evaluate important designations to ensure that they still make sense in light of the pending or recent divorce. Some common examples include:
- Beneficiary designations on savings, retirement, and other pay-on-death accounts
- Beneficiary designations in the Will
- Choice of executor for the Will
- Designation of health care surrogate under 765.202 Fla. Rev. Stat. (2023)
- Any other important estate planning tools employed during the marriage
One point of caution is that in some cases parties to a divorce may be prevented from making certain changes to financial accounts (such as withdrawing sums of money that a Florida court may consider to be “community property” and therefore subject to division of assets during the proceedings) while the divorce is in progress, so consider speaking with an estate planning attorney familiar with Florida law regarding such changes to ascertain at what stage of the proceedings the changes you have in mind can be legally carried out.
Transfer-on-Death Accounts and Life Insurance Policies
Some financial accounts may have to wait until after a Florida divorce court has made its determination regarding the final division of marital property before the parties to a divorce will know the full scope of their assets after divorce and have the freedom to establish beneficiary designations as they wish. The precise set of accounts concerned will depend on each individual’s circumstances and preferences, but in general it is a good idea to review the beneficiary designations on any type of account that is considered payable-on-death. Some of the most common examples in this category include savings accounts, which are often set to be transferable to another party once the designated beneficiary provides proof of their own identity and the account holder’s death, and life insurance policies, which by their nature are designed to be paid out directly to the designated beneficiaries without delay.
If you took out a life insurance policy during your marriage, or named your then-spouse as the beneficiary on an existing life insurance policy while the two of you were together, consider reviewing the relevant documents as soon as possible after divorce and evaluating whether someone else in your life would make more sense as the beneficiary. The same general logic applies to any accounts that are set up to avoid probate by transferring the contained assets directly to beneficiaries.
Last Will and Testament
During divorce proceedings – the often tense period between filing for divorce and achieving a decree of dissolution of marriage – spouses are somewhat limited in the degree to which they can control what their not-yet-ex can inherit from their estate. The Florida Probate Code contains a provision known as the “elective share” of the surviving spouse, which under § 732.226 Fla. Rev. Stat. (2023) entitles a surviving spouse (even one in the midst of an acrimonious divorce) to 30% of the decedent’s estate, regardless of any specifications the testator makes in their Will. However, Florida residents can still take proactive steps to ensure that at least some of their personal property may be retained for other beneficiaries – and they can update one other important provision commonly made in a Will.
Along with naming the parties an individual wishes to receive their assets once they themselves have passed away, a Will serves one other critical function: Nominating an executor to take responsibility for submitting the Will to probate and carrying out the final administration of the estate. People who are married very often name each other to this important role – but there is no obligation to do so, and the “elective share” provision of Florida law does not limit a testator’s right to name an executor, although their choice will need to be affirmed by the Probate Court. If you are going through a divorce in Florida and worried about your estranged partner serving as the executor for your estate, or have recently received your final divorce decree and now need to ensure someone else will fill the executor’s role, consider speaking with an experienced Florida probate attorney with Loughlin Law, P.A. to discuss an updated estate planning strategy that addresses your needs.
Advance Directives
Many individuals include advance directives within their overall estate plans. Naming one’s spouse as a health care surrogate, who will assume the authority to make medical decisions on behalf of the principal (the person creating the advance directive) in the event the latter is incapacitated by injury or illness is a very common strategy. However, in a divorce, this designation intended to provide the principal with peace of mind can easily become a source of distress.
Fortunately, an estate planning attorney can often help to address this type of concern by helping the divorcing spouse to create an updated advance directive that designates a new health care surrogate. Individuals can certainly incorporate updates to their advance directives as part of a holistic estate planning review after divorce, but if incapacity planning is a special concern it may also make sense to update the relevant designations early in the divorce process, rather than waiting for the divorce to make its way through the Florida courts.
Get Help With Estate Planning After Divorce in Florida
Once a couple has entered into divorce proceedings, some of the provisions each partner has made in his or her estate plan will likely begin to feel less appropriate than they did prior to estrangement. Some updates may have to wait until after divorce, but in general it is a good idea to begin considering post-divorce estate planning options early in the process. Starting a new life after divorce can also be a good opportunity to re-evaluate priorities and develop a holistic estate plan based on one’s current circumstances more generally – not only those that have changed as a direct result of the change in marital status. To speak with a seasoned Florida probate attorney about optimizing your estate planning strategies after divorce, consider connecting with Loughlin Law, P.A. You can begin the process today by calling 561-677-8384 to schedule a consultation.
