By: Lauren Barkan, Esq. and Jason Alman, Esq.
If you are going through a divorce, custody dispute, or other family law matters in Florida, you are probably focused on surviving the here and now – things like time-sharing schedules, dividing property, or figuring out support payments. But what many people don’t realize is how these changes may impact their estate plan.
Life events like divorce and remarriage can completely alter who you want to inherit your assets or handle important decisions for you in the future. This is why consulting with an estate planning attorney during or after a family law case can be just as important as having a good family lawyer by your side during the case.
With the foundational shift in your family, now is the time to get control of your affairs, protect your children, and ensure effective distribution upon your death. The estate planning process will help you leave a meaningful legacy and may also help you gain peace of mind during this time of transition.
DIVORCE CHANGES EVERYTHING – DESIGNATING A NEW TEAM:
Upon divorce, it is essential that you designate a trustworthy team to act on your behalf. Take control and ensure documents are effective during your lifetime, protect your children and establish effective distribution upon your death.
Updating Lifetime Documents
Durable Power of Attorney : Upon divorce, Florida Statute 732.703 revokes previous powers of attorney granted to your ex-spouse. Now is the time to appoint a new agent and a successor agent to make financial decisions on your behalf in the event you are unable to do so.
Health Care Surrogate : Here, you will appoint a surrogate to make medical decisions, to make or withhold consent and to apply for benefits on your behalf in the event you are alive but unable to act. You may also wish to appoint a successor Health Care Surrogate.
Notice of Preneed Guardian : This document appoints someone to act if you are alive but incapacitated. Creating this document in Florida takes this decision out of the hands of the court and puts you in control of who would be your legal guardian, should you need one.
Protecting Your Children
If you have children, your estate plan is one of the most important ways to protect them. Consider addressing:
Guardianship of minor children : Who will take care of your children in the event of your death or incapacity? With the change in your family, you may have strong opinions now. Clear instructions will prevent any court intervention that might not align with your wishes.
Special Needs Trusts : If you have a child or loved one with special needs, a Special Needs Trust will provide access for physical or mental disability while protecting their eligibility for government benefits.
Trusts : If you had a revocable living trust agreement, now is the time to update it and remove the ex-spouse, appoint a new Trustee, and ensure the Trust protects your children.
If you haven’t already created a revocable trust, now may be the time to do so. A revocable trust will protect your assets from probate, and ensure they pass to children or grandchildren with thoughtful provisions to provide a meaningful legacy.
The Effect of Florida Law on Wills upon Divorce
Florida Statute Section 732.507 provides that any provision in a last and will testament, that favors your ex-spouse, shall treat your ex-spouse as though he or she had died at the time of divorce.
First, the entire will is not automatically revoked . Your will is still valid however the provisions that favor your ex-spouse are revoked.
Next, your ex-spouse cannot act as a personal representative or trustee. Now is the time for you to appoint a new personal representative and a successor.
Any bequest to your ex-spouse will lapse and become part of your residuary estate.
Although the statute provides certain safeguards upon divorce, you should still be proactive here. If you previously executed a pre or post-nuptial agreement, review it to ensure required obligations are reflected in your estate plan.
Impact of the Elective Share in Florida
In Florida, the elective share rule provides that a surviving spouse may claim thirty percent (30%) of their deceased spouse’s estate, regardless of what is stated in the will or trust. The elective share terminates upon divorce unless the dissolution or judgment provides otherwise. However, if you die during divorce proceedings, then your surviving spouse may be able to claim an elective share since the court did not legally dissolve the marriage.
Florida Law and Beneficiary Designations
Florida Law Sect. 732.703 automatically invalidates a beneficiary designation made by one spouse for the benefit of another. These designations may include life insurance policies, retirement accounts, some employee-sponsored accounts and payable upon death accounts (PODs). Now that you are in the process of divorce, it is imperative that you add new beneficiaries as part of your new estate plan.
Subsequent Marriages and Blended Families
If you decide on remarriage, consider the effects on your estate plan, and a potential prenuptial agreement.
Protecting Yourself and Creating a New Legacy
Your divorce presents a new beginning and an opportunity to become proactive. Family law and estate planning go hand in hand. Our team of Family lawyers can guide you through the process of divorce and our Estate Planning attorneys will ensure that your wishes are carried out in life and upon your death to help you build a meaningful legacy.
