If you have been responsible enough to put an estate plan in place, it’s important not to forget about that plan if divorce is in your future. That’s one of those life events that will warrant some modifications.
The timing of these modifications is determined in large part by state law. Let’s take a brief look at a couple of common estate plan questions for divorcing Floridians.
Can I disinherit my spouse before my divorce is final?
Under Florida law, a person generally has a right to claim an “elective share” of their spouse’s estate if they die while they’re still legally married, even if they’re not named in the will or other estate plan document. That’s assuming they didn’t waive that right in a prenuptial or postnuptial agreement.
Once the divorce is final, the law states that “an interest in an asset to or for the benefit of the decedent’s former spouse is void…. The decedent’s interest in the asset shall pass as if the decedent’s former spouse predeceased the decedent.” That means it goes to the contingent (alternate) beneficiary, if one is listed.
The same applies to a number of other assets, like retirement accounts, on which a spouse has been designated as a beneficiary. However, it’s important to determine specifically how this will be handled on each account and other asset. Further, a divorce agreement may require that a former spouse be listed as a beneficiary on some of these assets.
What about my spouse’s estate administration responsibilities?
Florida law states, “Any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person….” That means a spouse who has been named the executor of the estate or other type of administrator, such as a trustee or power of attorney (POA), will no longer have that position once the divorce is final.
In many cases, spouses aren’t required to hold these positions, so it may be possible to appoint someone else before the divorce is final – or even begins. For example, some people aren’t comfortable with their soon-to-be ex having POA over their medical decisions should they become incapacitated.
Every estate plan, like every divorce, is highly unique. That’s one reason why it’s wise to get experienced estate planning guidance early, if not before, the divorce process to help ensure that all necessary changes are made based on Florida law.
