What Aspects of Estate Planning Should I Consider When Divorcing in Florida?
If you have just concluded a divorce, it is important to consider the effects it might have on your estate planning. Estate planning can be a sensitive and complex topic and is critical to have done properly. Therefore, it is important to discuss with your Orlando Divorce Attorney the effects your divorce may have on your existing estate plan.
It would be prudent to update your estate planning documents after a divorce because your assets and property may have changed significantly since the original execution. Further, you may want to designate new beneficiaries to your documents, as your former spouse may have been involved in some capacity previously. However, Florida law does offer some protection if you do not take the active steps to change the beneficiary designation of a former spouse. Florida statute 732.703 provides, “A designation made by or on behalf of the decedent providing for the payment or transfer at death of an interest in an asset to or for the benefit of the decedent’s former spouse is void as of the time the decedent’s marriage was judicially dissolved or declared invalid by court order prior to the decedent’s death, if the designation was made prior to the dissolution or court order.” There are two key points to draw on from this statute. First, if you would like to remove your former spouse as a beneficiary from your documents, Florida statute automatically does this retroactively to the date of dissolution. However, many individuals do not rely solely on the statute as they may have not provided any secondary beneficiaries. If you have not provided any secondary beneficiaries, it is important to update your documents, as if there are no secondary individuals your estate will be subject to probate and follow Florida statute rather than your own specific desires.
Second, if you wish to keep your former spouse, in your estate planning documents you must take steps to do so. A former spouse will only be removed as beneficiary from documents that were designated prior to the divorce decree. Therefore, if you wish to keep your former spouse within your estate plan it is necessary to make a new designation after the date of divorce. The documents that are considered under this statute include: wills, revocable trusts, advance directives or living wills, powers of attorney, life insurance policies, qualified annuity, IRAs, employee benefit plan and payable on death accounts. These documents tend to hold large amounts of finances and assets therefore they can hold great value your beneficiaries’ future. Discuss with your Orlando Divorce Attorney your exact desires of your assets after your death, to ensure your documents align with your intentions.
If you share common children with your former spouse it is important to also consider their needs within your estate planning documents. If one partner passes and is outlived by the second parent, Florida statute provides the remaining parent to be sole guardian of the children. However, you may want to designate a secondary guardian if your spouse also passes or is deemed unfit by the court. Further, if you intend on leaving your assets to your children after you pass it may be important to formulate a plan to ensure your former spouse does not have control of these assets. If your children are under the age of 18, the items they inherit from you will be controlled by their guardian, your former spouse. However, this may be avoided with a trust. With a trust, you will be able to designate a trustee of your choosing to account for your assets for the benefit of your children. Further, you will be able to designate the exact timeline for when the assets will be able to be given to your children. If it is important to you to have sole control over your remaining assets given to your children, it is critical to take the steps mentioned above.
Divorce can affect almost every aspect of your life, even your estate planning process. Therefore, it is important to have an Orlando Divorce Attorney explain the possible effects and assist you in evaluating your documents during your divorce process.
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