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When your divorce is finalized, it can feel like your whole life gets reset. But if you don’t revisit your estate planning after divorce, the legal implications can create chaos for your family in your final days, and may send your family back to court against your ex-spouse after your death. Here is a guide to estate planning after divorce that you can use to make sure your final wishes are up to date.
A divorce legally ends your marriage, but it also affects your estate plan. Under Florida estate planning law, a divorce treats each spouse as if they pre-deceased the other spouse when it comes to administrating Wills, distributing trust assets, and transferring financial accounts. However, it does not apply to accounts controlled by federal law, such as certain retirement accounts. This can create gaps in an existing estate plan or cause your property to pass to alternative beneficiaries rather than the children or other close relatives you intended.
If you don’t review your estate plan after your divorce is final, it could cause your property to be transferred to people in ways you didn’t expect. In addition, it can also create problems if your financial advisor or insurance companies have not been updated about your marital status. In addition, failing to update your estate plan after divorce can give your ex-spouse apparent authority over your affairs in your final days, even if they are the last person you would want to make those decisions for you. While some people start updating their estate plan during the divorce process itself, there are portions of your estate plan that should be updated or executed after the Judgment of Divorce is signed.
The divorce process can be highly contentious and you may be eager to put it behind you and move on. Before you do, be sure to take these steps to make sure your estate plan reflects your final wishes now that your marriage is over.
The first step to updating your estate plan after divorce is to take the lay of the land under your current estate plan. Most people give their spouses significant authority over their affairs while married, naming them:
Many of these property interests and authority designations will be automatically severed by the divorce, leaving no one to fill the role. You should carefully review all your estate planning documents and your judgment of divorce with an estate planning attorney, to find the gaps and identify any interests or rights your ex-spouse may still have.
Florida law assumes you will provide for your spouse upon your death. If you die while you are still married, your spouse will be allowed to claim a spousal elective share out of your estate. But the same isn’t true for an ex-spouse. Most divorcing couples aren’t interested in providing for one another after the divorce is over. But that doesn’t mean you can’t. If you separated on good terms, or if you see your spouse’s children or former in-laws as part of your family, you may want to include them in your estate plan, even after the divorce is over. Decide what role you want your ex-spouse and their family to play in your future estate plan.
If you and your ex-spouse have children in common, they will receive custody of those children if something happens to you. However, if you have children outside that relationship you may have named your spouse as your intended legal guardian to allow your children to remain together and minimize the disruption in your kids’ lives. After your divorce is final, you may need to elect new legal guardians for your children (other than those born during the marriage). You may also want to consider naming new custodians or trustees for your long-lived pets.
The last step before executing your new estate plan is to make sure your plan and your Judgment of Divorce don’t conflict. In some cases, family court judges may require you to retain property interests as joint tenants after the divorce. You may also be ordered to maintain life insurance policies to pay for child support, alimony, or property provisions in the divorce judgment if you die before they have been paid off. If you update your estate plan to change the beneficiaries on those policies, it could send you back to family court for contempt or enforcement actions. That is why you should always provide your estate planning attorney with all the paperwork from your divorce action before updating your estate plan.
Once you have made all these decisions, your next step is to work with an estate planning attorney to draft updated Will or trust documents to execute your new plan. If the changes are relatively minor, you may be able to do this with a codicil. However, more often, you should expect to execute an entirely new estate plan that revokes the earlier estate plan and officially removes your ex-spouse from your estate plan.
In addition to your Will or trust documents, you will also need to sign new powers of attorney, healthcare surrogate designations, and HIPAA confidentiality waivers naming new decision makers for your health and financial affairs. While these are terminated by statute when the Judgment of Divorce is entered, your healthcare providers, banks, and financial advisors may not be notified about your divorce and may mistakenly rely on outdated documents. By signing new paperwork and ensuring it is distributed to the appropriate financial and medical professionals, you can make sure your ex-spouse’s authority to learn about your health circumstances or make decisions on your behalf is put to rest.
The most important step in estate planning after divorce is also often the last step. Under the federal Employee Retirement Income Security Act (ERISA), account administrators of employer-provided retirement accounts are legally required to distribute assets to the individuals named on the most recent beneficiary designation filed with the administrator. Unlike the other parts of your estate plan, this beneficiary designation remains effective even after divorce. If you don’t update your beneficiary designations after divorce, your account administrator may be legally required to send those funds to your ex-spouse. This could result in additional probate litigation as your beneficiaries and heirs try to get that money back from your ex-spouse.
If you also have transfer-on-death accounts, it is also important for you to change those beneficiary designations. State law does apply to those accounts, terminating your ex-spouse’s interest. However, the effect of that termination can create substantial tax consequences if your transfer-on-death accounts get rolled over into your probated estate after your death, increasing the total taxable value, and putting your assets at risk.
At Harrison Estate Law, our experienced estate planning attorneys are happy to help you review your existing estate plan to find the gaps left by divorce, and help you update everything to reflect your wishes going forward. Please contact us online or via email or call 352-559-9828 to schedule a free consultation. If you don’t live close to Gainesville, we are happy to set up a phone or Zoom call.
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