Updating Your Will After Divorce

Recently divorced woman reviewing her estate planning documents.

Updating Your Will After Divorce

Going through a divorce can be an emotionally challenging period that triggers a whirlwind of feelings, ranging from anger and sadness to moments of hope or the exhaustion of relief. During this process, estate planning might not be a priority, but in the aftermath of receiving the final divorce decree, newly single people can benefit from taking a moment to review their estate plans and update their estate planning documents, such as the Last Will and Testament, to account for their new circumstances. Divorce means significant life changes, which is one of the primary reasons for updating your will and other estate planning documents. Individuals in Florida can reach out to the experienced estate planning attorneys at Loughlin Law, P.A. to get the benefit of legal advice as they take this important step into the new future that awaits. Call (561) 677-8384 to schedule your personalized consultation.

Why Updating Your Will After Divorce Matters

The Last Will and Testament is the foundation of any estate plan. This document, also known as a will, articulates the testator’s preferences for the distribution of their assets after their passing, and can also be used to assign key roles to specific individuals.

A recent divorce often alters ex-partners’ perspectives on their former spouses’ involvement in their estates, so it is important for recently divorced individuals to be aware that, in general, getting a divorce does not nullify an entire will. However, specific provisions in favor of an ex-spouse, such as their designation as an executor or beneficiary, may be invalidated. The remaining provisions in a will remain legally effective.

Consequences of Failing To Update a Will

Neglecting to update a will post-divorce can lead to various potential repercussions. Some of these may include:

  • Potential claims by an ex-spouse that are based on outdated provisions in the testator’s will.
  • Appointment of an ex-spouse or their relatives as executor or guardian, despite the changed circumstances.
  • Unintended beneficiaries, such as stepchildren, receiving assets outlined in the outdated will.
  • Accidental omission of a new spouse or child from the will, leading to potential disputes and complications.

Can I Exclude My Ex-Wife From My Will?

In Florida, the supremacy of a will over a divorce decree is contingent on the intention within the will itself. During a marriage, spouses commonly designate each other as beneficiaries in their respective wills. The Florida legislature has enacted several statutes that essentially nullify provisions in a will if a deceased former spouse’s will designates their ex-partner as a beneficiary without any explicit mention of the divorce in either the will or the divorce decree.

Wills Void After Divorce in Florida: Certain Provisions Only

One of those statutes is Florida Statute §732.507(2). This legislation states that any clause within a will executed by a married individual affecting their spouse becomes void upon divorce, dissolution, or annulment unless the will or the divorce decree explicitly maintains the validity of the inheritance.

People who remain on friendly terms with their ex-spouses may sometimes wish to leave property to their former partners, regardless of the divorce decree. In these cases, updating the will after divorce provides these individuals with an opportunity to make this directive explicit in the updated document.

Other Estate Planning Documents After Divorce in Florida

Because a Last Will and Testament is often used in conjunction with other estate planning tools, as you are updating your will after a divorce you may wish to review the changes Florida law imposes on the interpretation of other documents. One statute in particular that may apply to many individuals after a divorce is Florida Statute §736.1105. That statute focuses on a spouse who established a revocable trust that benefitted the other partner in the marriage, prior to receiving a divorce or annulment. According to the statute, the trust will be rendered null and void upon divorce unless either the court’s judgment or the trust document states otherwise.

Can an Ex-Wife Claim Inheritance After Divorce?

What assets an ex-wife can claim in an inheritance depends on how those assets were classified during the divorce proceedings. Are they comingled or individual assets? When a spouse intermingles their inherited assets with marital assets, the door is opened for the other spouse to potentially stake a claim to the inherited property. Sharing inherited assets with a spouse by means of a joint title automatically classifies the asset as marital property. If a wife inherits a boat from her parents and subsequently re-titles the boat in both her name and her spouse’s name, the boat transforms into marital property by virtue of the joint title. If the couple afterward gets a divorce, in which the boat is awarded to the husband as part of the distribution of marital assets, and the ex-husband subsequently passes away before his former wife, possession of the boat will not automatically revert to the wife during the probate of her ex-husband’s will.

Another issue that could complicate inheritance claims is using marital funds to enhance an inherited asset. If a husband taps into joint finances to carry out repairs or renovations on an inherited lake house, the wife could reasonably claim that the lake house is now marital property due to the infusion of matrimonial assets. These ordinary joint ventures, part of sharing a life and a household, can nonetheless complicate a divorced person’s estate planning process. The potential for complications of this type constitutes another excellent reason to talk with Loughlin Law, P.A., and set up a thorough review of your will.

How Many Times Should You Update Your Will?

In terms of updating your will, it is advisable to review and revise it every five years or following any significant life event. A will serves as a crucial document outlining the distribution of your assets and safeguarding the interests of family members and any other beneficiaries after your passing. Over time, many individuals discover that their preferred beneficiaries or executors have changed, or they experience unexpected situations that necessitate modifications to the stipulations within the will. Updating your will can address all those issues.

Who Is the Beneficiary of a Trust After Divorce?

When an inheritance is placed in a trust for a child or any other designated beneficiary, rather than being directly bestowed, it significantly enhances the beneficiary’s protection against potential lawsuits, bankruptcy claims, and divorces. However, the safeguards provided by a trust are not 100% foolproof. In the absence of a prenuptial agreement, an inheritance, even when sheltered within a protective trust, might be susceptible to risk during divorce proceedings, especially when the court examines the following issues:

  • Alimony arrangements
  • Property settlement assessments
  • Potential loss of trust assets

There are several steps to take to strengthen the trust and ensure the enhanced protection of the inheritance in the event of the beneficiary’s divorce. Those steps include formally clarifying the grantor’s intent, appointing an independent trustee, establishing a fully discretionary trust, incorporating multiple beneficiaries, appointing a trust protector, considering the benefits of a Domestic Asset Protection Trust (DAPT), and conditioning distributions on prenuptial or postnuptial agreements.

Make Updating Your Will After Divorce a Priority

A divorce means many life changes, but not all of those changes are immediate. A will is part of estate planning that hopefully will not be activated for years to come. However, the uncertainties of life mean that updates to a Last Will and Testament should not be put off. Updating your will after divorce can benefit from the same businesslike approach you probably take to setting up new bank accounts, updating your mailing address if necessary, and carrying out other essential household management and accounting tasks. Similar to those other necessary updates, in many cases the most pressing decision to make about updating your will is choosing the right professionals with whom to work through the process. The estate planning attorneys at Loughlin Law, P.A. support Florida residents at all stages of life in revising their wills from start to finish, and have the experience needed to update an entire suite of estate planning documents to support the Last Will and Testament, or to develop new documents to achieve an individual’s estate planning goals. The process begins with a thorough review and consultation. Call (561) 677-8384 today.

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