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Divorce & Your Estate Plan: 5 Things to Know


Increasing numbers of Americans are divorcing later in life. Indeed, Forbes notes that although the divorce rate is declining across the nation, it is increasing for those over age 50. Divorce as a senior is very different from divorce when you are 30. Chances are, you have more assets, more retirement income in play, and shorter time horizon. You need help getting your estate in order.

At Millhorn Elder Law Planning Group, we advise clients on how to adapt an estate plan made while married. Several Florida laws impact an estate plan when a client divorces, and our estate planning lawyer in the Villages highlights five facts you need to know right now.

You Need to Revise Your Will

Fla. Stat. §732.507 states that any provision in a will that affects your spouse becomes void upon divorce or annulment. It is as if your spouse predeceased you.

For example, you might have left the home to your spouse in your will. Now that you are divorced, the home will go to someone else, such as an alternate beneficiary or, barring that, the beneficiaries of your residual estate.

There are problems that can arise, however. For example, your ex might have been the only beneficiary named in the will, or you don’t want the beneficiaries of the residuary to get specific assets. Although you can take comfort knowing that your ex won’t receive anything, you’ll still need to take affirmative steps to name an appropriate beneficiary. For these reasons, we recommend meeting with an estate planning attorney and revising the will.

You Must Revise Your Revocable Trust

A similar provision applies to revocable trusts created before divorce: § 736.1105 likewise states that any provision affecting a spouse becomes void when divorced, unless the divorce decree or trust provides otherwise. You should revise a trust when revising the will.

Change the Beneficiary on Non-Probate Assets

More and more assets are passing outside probate, such as retirement accounts, life insurance proceeds, and payable on death accounts. These can represent a large percentage of any estate.

Florida has a statute that addresses what happens after divorce. Much like the laws discussed above, Fla. Stat. § 737.703(2) states that designations to a former spouse are void upon divorce or annulment. However, if you don’t change the beneficiary designation, then the assets probably pass to your estate, which could have negative tax and other consequences.

Avoid Delay

The laws discussed above only apply when you receive an order of dissolution or annulment. This means that if you die in the middle of divorce, then your soon-to-be ex can still inherit from you. Although it’s hard to speed up the divorce process, it is not difficult to meet with an estate planning lawyer and revise an estate plan.

We recommend meeting as soon as you suspect that divorce is inevitable. This might be many months before either one of you actually files papers. In any event, please do not wait until you have a divorce decree in hand.

Address Other Estate Documents

A comprehensive estate plan also includes:

  • Designation of health care surrogate
  • Financial power of attorney

These documents nominate people to make decisions for you in the event of incapacity. However, Florida law treats them a little differently when you divorce.

Section 765.104(2) will automatically revoke a surrogate designation upon dissolution or annulment—but not before. Unless you want an estranged spouse to make health care decisions, you should quickly revise this document.

Section 709.2109(2)(b), however, automatically terminates the agent’s power of attorney as soon as divorce papers are filed. But that means you will be left without an agent unless you had named an alternate.

Contact Millhorn Today

Divorce can have dramatic impacts on even the most carefully crafted estate plan. To meet with one of our estate planning lawyers in The Village at the Millhorn Elder Law Planning Group, call us today at 800-743-9732.





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