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How Florida Law Affects Your Estate Plan After Divorce – Part 1

By Sabrina Casagrande
September 11, 2015

Surviving a divorce can be a feat. After having one’s assets diminished, the last thing on a divorcing person’s mind is their estate plan. Society influences divorcing persons to utilize an asset protection state-of-mind while they work towards dividing the marital assets.  However, many fail to realize the next important asset protection step comes after the divorce by updating their estate plans.

Florida law provides some automatic estate planning updates for divorced couples. When a married person in Florida has a will or revocable trust that affects their spouse, a divorce voids the provisions that apply to the ex-spouse, unless the estate planning document or divorce judgment expressly states otherwise. Divorce has the same effect on an existing health care power of attorney and financial power of attorney that appoint the ex-spouse as agent.

With these legal protections in place, you may think, “Why should I update my estate planning documents if Florida law does it for me?” If your estate planning documents do not list a back-up agent as the successor to your ex-spouse, the result is the same as if you had no estate plan. People who fail to realize this have a false sense of security regarding their estate plans.

Before 2012, the Florida law described above did not apply to assets with beneficiary designations such as individual retirement accounts (IRAs), annuities, life insurance policies, and payable-on-death accounts. Without a marital settlement agreement addressing those assets, a divorce before 2012 did not result in automatic removal of an ex-spouse as the designated beneficiary of an asset. The Florida legislature has since extended the automatic protections associated with divorce to include assets with beneficiary designations that designate an ex-spouse if the designation was made prior to the divorce and if federal law does not provide otherwise, such as with employer-sponsored accounts governed by the Employee Retirement Income Security Act of 1974 (ERISA).

Although many divorced couples see this extended protection as a benefit, it can have a negative effect on certain estate planning goals. If your goal is avoiding probate, you must update your beneficiary designations rather than relying solely on Florida law. If your ex-spouse is designated as the primary beneficiary of an asset and no contingent beneficiary is stated, at your death, the institution holding the asset will treat your ex-spouse as if she/he predeceased you. The institution would have no choice but to pay the funds to your estate, which means the funds become subject to probate. Payment to your estate creates the need for a probate to distribute that asset to your heirs or beneficiaries. This result destroys that goal of avoiding probate.

If you are getting a divorce or just finished one, you need to update your estate plan. If you wish to explore asset protection strategies call us at 813-852-6500 to schedule a consultation.

Stayed tuned for Part 2 of this series where we will discuss how Florida law affects your estate plan after divorce when it comes to assets with rights of survivorship and assets left to minor children.

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