Estate Planning Upon Divorce
March 2, 2021
People typically designate their spouse as the primary beneficiary in their will, trust, or beneficiary designation of their financial accounts and retirement accounts. However, what happens in the case of divorce?
Many times, someone may neglect to update their estate plan following a divorce and leave their ex-spouse as a beneficiary of their estate plan and of their financial or retirement accounts. Fortunately, at least in Florida, several laws automatically will update a person’s estate plan upon divorce, so that the unintentional consequence of leaving an estate or an account to an ex-spouse is avoided.
Florida Statute §732.507(2) provides:
“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 or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise.”
The complement to this statute in Florida’s Trust Code is Fla. Stat. §736.1105.
It is important to note that both wills and trusts have exceptions for when the will or the divorce judgment expressly provides otherwise.
Life insurance policies, retirement accounts, and bank accounts with a transfer on death designations also have special rules when it comes to divorce. The statutory protections came about in 2012, by way of Florida Legislature’s enactment of Fla. Stat. §732.703. This statute makes these types of designations void, if made prior to the dissolution of a marriage. Fla. Stat. §732.702(2).
A common question asked is if you remarry, whether the beneficiary designations are automatically replaced with the new spouse. The answer is no.
Another common question or issue which seems to arise is with naming or not naming any contingent beneficiaries. Particularly, if you have not named a contingent beneficiary in your estate plan or on your financial accounts, then this is treated as though there is no named beneficiary.
What’s the moral of the story? Keeping your estate plan updated is crucial. While Florida law does have certain protections to ensure that your assets end up where you intend, it is certainly best to prepare yourself in advance and without having to rely on these statutes. Any significant, substantial, or important changes in your family or your assets should prompt you to speak with your trusted estate planning lawyer to ensure your estate plan appropriately reflects your intentions.