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7 Estate Planning Facts to Consider As You File For Divorce

Plans change during a divorce.  Inheritance, beneficiary and guardianship arrangements that seemed ideal a few years prior suddenly seem unthinkable when faced with an impending and contentious divorce with a soon-to-be ex-spouse.  

If you are in this situation, there are many reasons to consult an experienced Florida estate planning attorney in addition to an expert in the family law practice area.  Here are seven areas where you may require legal attention as you proceed with a divorce. 

1. You cannot disinherit your spouse

Florida statute §732.201 states that surviving spouses cannot be disinherited in a will.  The statute allows for an “elective share”, a choice between what is left to them in the will or an amount of inheritance that the Florida state legislature designates statutorily.

This means that, if you are divorcing, you cannot disinherit your spouse by reducing their inheritance in your will to a negligible or zero amount.  They will still have the right to choose the amount that the state legislature has determined to be a fair share of your estate. 

2. After a successful divorce decree, you automatically disinherit your ex-spouse

The good news for divorced testators (principals of a will) is that Florida statute §732.507 provides that any will referencing an ex-spouse shall become void upon the official completion of a divorce.  That means that even in situations where a testator dies before redrafting a new will that does not include the ex-spouse, the fact that the divorce occurred will render the ex-spouse’s inheritance null and void.

Separately, Florida statute §736.1105 makes a similar provision regarding revocable trusts.  Specifically, if a revocable trust is executed before a divorce, any provision of the trust affecting the ex-spouse becomes null and void upon divorce as though the ex-spouse had died on the date of the divorce decree.

Notably there are exceptions in that if the judgment for dissolution of marriage or the language of the trust instrument specifically provides otherwise, then the protections of §736.1105 do not apply.  

Likewise, non-probate assets in Florida are also protected from ex-spouses.  Florida statute §732.703 makes a provision for many instruments in which an ex-spouse may have been named beneficiary in the event of  death such as bank accounts payable to estates after death, annuities, life insurance policies, IRA’s and employee benefit accounts.

A divorce decree must be made for these statutory protections to take effect. Furthermore, the divorce judgement can contain provisions that nullify the effects of this statute by, say, specifically determining that an ex-spouse is entitled to inheritance of a particular asset.

An experienced Florida estate lawyer, working in tandem with a family lawyer, can answer complex questions concerning what can be done strategically during the divorce proceedings to protect these assets prior to the issuance of a divorce decree. 

3. Your property may escheat  

Once your ex-spouse is statutorily removed from your will, it is important that the document is redrafted to designate other inheritors. This is to prevent a situation in which the courts determine on your behalf who shall inherit different parts of your estate. If the court cannot find a current spouse, descendent or sibling as an inheritor of your estate, then it is possible that your estate may become the property of the State of Florida.  This rare but entirely possible situation in which a state takes property in probate is referred to in law as escheating.   Florida statute §732.107 states: 

“[p]roperty that escheats shall be sold as provided in the Florida Probate Rules and the proceeds paid to the Chief Financial Officer of the state and deposited in the State School Fund.” 

If you are divorcing, you might not want to rely upon the courts to replace your ex-spouse with inheritors of its choice or simply seize your estate.  In that case, promptly contact an experienced estate attorney and make arrangements for your will and trust documents to be redrafted to include new inheritors and beneficiaries.

4. Power of attorney ends with the filing of divorce papers

Florida statute §709.2109(2)(b) states that a power of attorney terminates:

“[when] an action is filed for the dissolution or annulment of the agent’s marriage to the principal or for their legal separation, unless the power of attorney otherwise provides.” 

If you are a soon-to-be divorced principal of a power of attorney document, then it may be a relief to know that your current spouse is no longer your agent for legal purposes once you have filed for divorce.  However, it is important to note that your power of attorney document would immediately become null and void if it does not include an alternate agent.  In this case, power of attorney should be changed to a trustworthy person in your circle, perhaps a member of your family, CPA/financial advisor or a trusted attorney.

5. A soon-to-be ex-spouse can still be a healthcare surrogate

While Florida law does nullify non-health-related powers of attorney at the point of filing for divorce, it is important to note that health-related authority changes only after the divorce has been finalized.  Florida statute §765.104(2), states:

“Unless otherwise provided in the advance directive or in an order of dissolution or annulment of marriage, the dissolution or annulment of the principal revokes the designation of the principal’s former spouse as a surrogate.” 

This means that although a divorce decree would prevent an ex-spouse from being a healthcare surrogate, should incapacitation occur during the course of a divorce, then the soon-to-be ex-spouse will be a healthcare surrogate unless stated otherwise!  For many people this would create a conflict of interest that can endanger the health and wishes of the principal.

If you are divorcing and have not drafted an advance healthcare directive it is advisable that you contact an estate attorney to make arrangements so that your soon-to-be ex-spouse does not automatically become your healthcare surrogate in the case of an emergency.  

“If you are divorcing, you might not want to rely upon the courts to replace your ex-spouse with inheritors of its choice or [in rare cases] … seize your estate.”

6. You may want to reconsider guardianship 

At some part in a marriage, it seems like a good idea to have an in-law take care of the children in the case that both parents are incapacitated or die.  Prior to a divorce however, the prospect of in-laws raising one’s kids may be outright objectionable.  As mentioned earlier, there is no guarantee that death or incapacitation  won’t occur prior to the divorce – so taking care of this item as soon as possible makes sense.

Secondly, while Florida statute revokes the designation of the ex-spouse in wills and trust documents, it does not revoke references to friends and families of the ex-spouse.  So if you are planning a divorce, it is essential that you consult with an experienced estate planning attorney to review and if necessary redraft a new will with different guardianship guidelines.     

7. Control of your business may be at stake

Many businesses use cross-purchase plans to ensure business continuity after a business partner dies or becomes incapacitated.  A cross-purchase plan is an insurance document that provides for the surviving partners purchasing the shares of the deceased/incapacitated partner.  In many cases, these shares are purchased from the decedent’s spouse. If you have a cross-purchase plan involving your soon-to-be ex-spouse it is important to speak to an experienced Florida estate planning attorney and ensure that your business and your shares in the business are protected by redrafting the agreement.  

Call South Florida Law

Are you planning a divorce in Florida and require your will to be redrafted to reflect your new circumstances? Take proactive measures and consult an experienced estate attorney from South Florida Law. The team at South Florida Law may be able to protect your inheritance and business as quickly as possible from your soon-to-be ex-spouse in the case of your unexpected death or departure. Reach out to South Florida Law at (945) 900-8885 or via our contact form.

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