In Florida, a married couple can create joint wills together. It is quite common for spouses to name each other in their estate planning documents, but what happens if you create joint wills (and other estate planning documents) and then decide to get divorced? Florida has certain laws that deal with estate plans for divorcing couples, which you should keep in mind when getting divorced. The dissolution of marriage will affect your estate plan, and important things to consider are what happens during and after the divorce, whether there are children, and how your assets are left to them.
Will
To help avoid the need for the state to decide how your estate should be distributed, it’s a good idea to have your last testament and will in place. Without it, the state will determine the division of your assets according to its intestate succession statutes, which may occur contrary to your wishes. According to Florida law, any provisions of your will that would benefit your former spouse will be invalidated, unless the will was created after the divorce or states otherwise. If you haven’t provided a secondary designation for assets that would otherwise go to your former spouse, the state will have to determine where the assets should go.
If a spouse dies during a pending divorce, the surviving spouse will inherit through the deceased’s will. In case there is no will, and if there are no children from a previous relationship or outside the marriage, the surviving spouse will inherit all assets. It won’t be possible to completely disinherit a former spouse until the divorce is finalized – a surviving spouse can claim up to 30% of the value of the deceased’s estate. These rights can be waived only by a prenuptial or postnuptial agreement.
After Divorce
After the divorce is finalized, the law treats your former spouse as if they had died at the time of the marriage dissolution. Once the divorce is complete, there is no need to change your will, but it is still a good idea to change beneficiary designations on all assets where your former spouse is named. Also, you will want to revisit any revocable trust you had created to handle some of your assets. If the trust was created before the divorce and your only and/or primary beneficiary is your former spouse, the provisions that benefit him or her will be invalidated by Florida law. When it comes to distributing your assets according to your wishes, your trust could become meaningless without a secondary beneficiary.
Beneficiary Forms
When filing for divorce, you will have to provide a comprehensive list of all your assets, including your insurance policies, retirement plans, and other types of assets that require you to name a beneficiary. Make sure to update those forms after the divorce by naming someone else as the beneficiary. Failing to update those forms can cause unnecessary confusion and stress in case of your death.
Children
If you have children from the marriage with your former spouse, you may not be able to prevent him or her from becoming their guardian. However, you can keep your former spouse from taking control of your assets that you leave for the children (including your home, bank accounts, insurance proceeds, etc.).
If you have questions about divorce, child support, shared parental responsibility, time-sharing/parenting time, and parenting plans, contact Debora A. Diaz Esquire at 727-846-1802 to schedule a consultation or use the Scheduling Link: https://deboradiazlawscheduling.as.me/.
At this time, all consultations are by telephone or video conferencing in order to protect our staff and clients.
Attorney Diaz practices exclusively in divorce and family law in Florida. Debora A. Diaz is also a Florida Supreme Court Certified Family Mediator.
Written by Debora A. Diaz, Esquire.