Marriage can intertwine two people’s lives more than they notice. That means that when married couples decide to pursue divorce, they will need to begin to separate all areas of their lives that have been woven together. That could mean negotiating a settlement with each other or between their respective lawyers. It may mean hashing out a custody arrangement that meets the best interests of any shared children. It can also mean revisiting and potentially revising their estate plan, particularly if they have engaged in comprehensive estate planning together. This is especially important if the couple shares children. There are some important estate planning aspects that you need to consider if you are thinking about divorce or have already gone through the divorce process.
It is always a good idea to have a last will and testament in place to help avoid the need for the state to determine how your estate should be distributed. Without a valid will, Florida will look to its intestate succession statutes to determine division of your assets. Intestacy basically refers to dying without a valid will in place. If the state is left in charge of determining how your assets are to be divided, then they could be divided in ways contrary to your wishes. This can also happen if you have failed to update your will to reflect important life changes, such as divorce.
Florida law invalidates any provisions of your will that would benefit a former spouse unless the will specifically states otherwise or was created after the dissolution of marriage. However, if you have not provided a secondary designation for assets that would have otherwise gone to a former spouse, then it may become necessary for the state to determine where such assets should go. It is a good idea to review your will with an experienced Florida estate planning attorney whenever major life events occur, especially an event like divorce and/or remarriage.
If you have elected to create a revocable trust to handle some of your assets, you may need to revisit that trust after a divorce is finalized. If your primary and/or only beneficiary to the revocable trust is your former spouse and the trust was created before the dissolution of marriage, Florida law will invalidate the provisions that benefit the former spouse. Without a secondary beneficiary, your trust could become almost meaningless when it comes to distributing your assets according to your wishes. Depending on how the trust was structured, you may have to destroy the trust and create a new one in order to change the person to whom the trust has been designated. There are other potential ways to “fix” these scenarios with trusts that might be beneficial for you, but it is important to make sure you explore your options.
Do Not Forget Beneficiary Forms
When you decide to pursue divorce, you will need to provide complete financial disclosures which will require you to compile a comprehensive list of all of your assets. Included in those assets will likely be retirement plans and insurance policies, as well as other types of assets that may require you to name a beneficiary. Typically, married individuals tend to leave these assets to their spouse. It is important to make sure that you follow up with each of those assets to discover how to change the beneficiary should you choose to name someone else as beneficiary instead of your former spouse. Florida law now treats these types of forms the same as a will in that any nomination of a former spouse made before the dissolution of marriage is null and void unless documents specify otherwise. Even if you want your spouse to remain as beneficiary you will likely need to update the forms after divorce.
It is important to update these forms as soon as possible. Failing to do so can cause unnecessary stress and confusion in case of your death, especially if you choose to get remarried. Chances are a great deal of your assets have beneficiary forms, or at least have the option of nominating a beneficiary through some mechanism established by the governing institution. For example, many bank accounts allow you to elect them to be payable or transferable on death to an individual. While you may not think you need to specifically update a beneficiary for your checking account, you may need to close the account in order to reopen it without being payable on death to your former spouse.
Powers of Attorney and Healthcare Designations
Powers of attorney are used to nominate other individuals to make certain decisions for you if you are unable to do so, especially financial decisions. For instance, if you are injured and end up in a coma, someone will need access to your finances to address any outstanding obligations you may have. Additionally, Florida law allows you to nominate an individual to make healthcare decisions according to your wishes in the event that you are not able to make those wishes known. This could include decisions to maintain life support or elect lifesaving medical treatments.
Typically, married couples rely on their spouse to fill these roles. When these documents are executed, it is not uncommon to list your spouse as your designee. Like other assets potentially involved in estate planning, Florida law invalidates the selection of a former spouse if that selection was made prior to the divorce decree.
Legal Assistance with Florida Divorce
While an experienced Florida estate planning attorney is your best bet for ensuring that your estate plan is up to date and complies with Florida law, you divorce attorney can help you understand the various effects a Florida divorce might have on your comprehensive estate plan. It is also possible for your divorce attorney to work with your former spouse and/or their attorney to ensure that adequate provisions covering factors related to estate planning are covered in the divorce decree itself – which may be the right option for you. If you have questions about the Florida divorce process and want to find out more information about how it might impact you, contact Scott J. Stadler to schedule a consultation where you will have a chance to find out more information. A Florida divorce can be intimidating, but you do not have to face it alone.