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Divorce can change everything in your life -- from where you live to who counts as family. It is also one of the most important life events for reviewing your estate plan. Here are some reasons why updating your divorce estate planning is so important, and what estate planning for divorced persons should look like.
A divorce can leave your Florida estate plan in shambles. Florida law says that after a divorce is final, your spouse will be treated as if they died before you did for administering your Will, distributing trusts, and resolving any financial accounts. This can leave large gaps in your plan, and cause your assets to go to people you may not expect, or intend. That’s why updating your estate plan during divorce is an important final step in ending your relationship with your spouse.
Your estate plan includes more than just your Will. It also contains documents naming who you want responsible for your health, finances, and well-being during your final illness. Some of these documents could come into play as soon as you file for divorce, so you should include your divorce estate planning attorney from the very beginning.
Your estate plan includes several documents that direct who should be allowed access to information and the power to make decisions for you when you cannot:
Many people designate their spouse as the first candidate for all these decisions. However, that can create problems if you don’t update your estate plan after a divorce. Your family may file for guardianship after a medical emergency or terminal condition renders you legally incapacitated. The judge will refer to your estate plan, which may still designate your ex-spouse as power of attorney, healthcare surrogate, and preferred guardian. Appointments of a former spouse in these advance directives are voided. However, if you don’t have an alternate in place, it could leave the court without guidance for who you want controlling your affairs.
These designations can also cause problems even before the judgement of divorce is entered. One spouse with power of attorney may be able to access the other spouse’s bank accounts, and even remove assets. To prevent this, you should update your powers of attorney, health care surrogates, and guardianship designations as soon as you know your marriage is ending.
Many divorces happen to make way for a new relationship or second marriage. But if you don’t update your estate plan after divorce, your new spouse may find himself or herself unintentionally excluded. The Florida probate code removes an ex-spouse by treating them as predeceased. However, it doesn’t allow your new spouse to take his or her place in the documents. That can force your second spouse to exercise their spousal election, overriding your Will and taking assets you had intended to pass to your children from your first marriage or other heirs.
Similarly, depending on the way your Will is written, it could accidentally omit the children from your second marriage. This could open your family up to a Will challenge. It could even leave your youngest, and most financially vulnerable children struggling to support themselves after you pass away. Updating your estate planning after divorce, and again after remarriage or the birth of additional children, will make certain your new spouse and all your children receive their share of the assets after your death.
Many Florida families craft estate plans with the goal of avoiding probate. This includes using:
Each of these tactics involve beneficiary designations, naming the people who should receive the funds or assets included in the account, or payable under the policy. Just like in cases of advanced directives, the “predeceased” ex-spouse’s beneficiary designation will not be honored. Instead, these funds will get rolled into the probated estate. Because the estate is not a “natural person,” this transfer can create substantial tax consequences when funds are withdrawn from a tax-deferred retirement account. Then, unless your Will is written in anticipation of that chance, those funds could pass to whomever you designate to receive the residual of your estate, rather than the person you might have wanted to receive the money.
However, Florida’s statute about an ex-spouse’s right to an estate after divorce doesn't apply to Employee Retirement Income Security Act (ERISA) retirement accounts. These accounts are controlled by federal law, which says the plan administrator must honor the beneficiary designation on file. An outdated beneficiary designation on an ERISA account could hand your ex-spouse the entire balance of your retirement account even after your divorce lawyer shielded those accounts during the divorce.
But what if you want your ex-spouse to receive something from your Will or estate plan? You might want to name your ex-spouse as the trustee for your children’s inheritance, or even allow them to move back into the marital home after you die.
You have the ability to name any heir or beneficiary you want for your assets, including your ex-spouse. However, if you want your spouse to receive something through the Florida probate court, that will take an extra step. The law discussed above applies to the person you were married to at the time the estate plan was executed. If you still want your ex-spouse to be part of your estate plan, you will need to sign new versions of your Will or other estate planning documents after the judgment of divorce is signed.
At Harrison Estate Law, our estate planning attorneys want to make sure your estate plan matches your wishes before, during, and after your divorce. We will be happy to meet with you to review your existing estate planning documents and recommend updates in time to protect your interests from your ex-spouse. If problems arise, we will be there for your family, representing their interests in the Florida probate court. 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 or are practicing social distancing, we are happy to set up a phone or Zoom call.
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