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Can a Divorce in Florida Impact Your Estate Plan?

Posted by David W. Veliz | Sep 20, 2019 | 0 Comments

While married, you did everything you were supposed to do to secure your futures: you made sure your estate plan was properly drafted and executed through an experienced estate planning attorney in Orlando. But then you and your spouse divorced. Does this divorce impact your estate plan at all?

It does.

But surprisingly few people after a divorce revisit their estate plans to update them according to their new living situations. It could simply be they are just too busy and the thought never crosses their minds ... until it's too late. Here, we tell you how a divorce makes a difference to your estate plan in Florida and what to do about it.

The Impact of a Divorce on Estate Planning in Florida

Four often-used estate planning tools are

  • the last will and testament;
  • the revocable trust;
  • the power-of-attorney; and
  • beneficiary designations on bank accounts, insurance, etc. 

Fortunately for you in Florida, you are covered at least to the extent that any term, element, benefit referring to your ex-spouse will become pretty much void after a divorce. To clarify, however, the below statutes only take effect upon the final disposition of the divorce proceedings and not one day sooner. 

Last Will & Testament

Florida Stat. § 732.507(2) covers wills and states that:

Any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise.

Revocable Trust

Florida Stat. § 736.1105 treats revocable trusts about the same as the will and states that:

Unless the trust instrument or the judgment for dissolution of marriage or divorce expressly provides otherwise, if a revocable trust is executed by a husband or wife as settlor prior to ... entry of a judgment for dissolution of marriage or divorce of the settlor from the settlor's spouse, any provision of the trust that affects the settlor's spouse will become void upon ... entry of the judgment of dissolution of marriage or divorce and any such trust shall be administered and construed as if the settlor's spouse had died on the date of the ... entry of the judgment for dissolution of marriage or divorce.

Power-of-Attorney

Florida Stat. § 709.2109(2)(b) treats powers-of-attorneys a bit differently. When a principal of a power of attorney divorces the agent, this statute takes effect as soon as the petition for dissolution of a marriage is filed rather than wait until the divorce is final. As such, if you do not have a successor agent named in the power of attorney document, the document is no longer effective.

Beneficiary Designations

Florida Stat. § 736.1105 prevents payment or transfer of an interest in an asset upon the death of the ex-spouse, making the asset part of the decedent spouse's probate estate.

Keep in mind, however, that jointly titled accounts (i.e., joint tenants or tenants in common) are not voided automatically upon dissolution of a marriage.

What to Do About Your Estate Plan After a Divorce in Orlando

Now, even though your ex-spouse will likely not benefit from an untimely death after a divorce, you still need to avoid probate and make sure that other aspects of your estate planning will not benefit your former spouse (unless you want it to).

Probate avoidance is likely one of the reasons you initiated estate planning and it will continue to be a reason after a divorce. Making sure your estate planning reflects your new situation may require the help of an experienced estate planning attorney in Orlando, Florida. It would be useful, too, if that same attorney has experience in Florida family law generally and divorce specifically. If you have questions, contact Veliz Katz Law today.

About the Author

David W. Veliz

David is the managing partner of Veliz Katz Law centrally located in downtown Orlando, Florida. He has been providing a broad range of legal services to clients in the Central Florida area for over 29 years. David is a Florida native, having grown up in the Orlando area and is a graduate of Winter Park Hi...

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