What a person did for purposes of estate planning during a marriage might be forgotten during a divorce. Florida law recognizes that unless otherwise provided for, the former spouse of the testator of a will or trustee of a revocable living trust no longer will inherit pursuant to the provisions of that instrument if it was executed prior to the divorce or annulment.
Should a married couple have wills leaving their estates to each other, and they divorce with one of them never changing their will, neither takes under the other’s will. For purposes of estate planning and divorce, they’re treated as if they predeceased their former spouse.
However, former laws didn’t catch up with non-probate and non-trust estate assets. Although under a divorce or annulment, the former spouse didn’t take anything, if that former spouse was the beneficiary under a policy of life insurance, an IRA or other benefit in a plan, they still would receive under the policy or plan. That gap was finally dealt with in 2012 when the Florida legislature responded to court rulings that seemed to unjustly enrich former spouses who had been divorced for many years. Under a new statute contemplating estate planning and divorce, a beneficiary designation made before the owner’s death and before a divorce or annulment becomes void upon divorce or annulment.
There are many exceptions to this general rule. An irrevocable beneficiary designation will remain irrevocable, and of course, an instrument signed after a divorce or annulment will be enforceable. Should a court order require one party to a divorce or annulment to maintain an asset for the benefit of the former spouse or the children of the marriage, that asset can’t be disturbed. Any joint tenancies in real estate, bank accounts or the like will pass accordingly with the right of survivorship and remain unaffected. Other exceptions might also control.
The statute and its exceptions are common sense logic. After a divorce, bring a copy of your decree to Mindy Felinton, and you can discuss your past and future estate plans with her. If you’re going through a divorce, take the time to meet with her about what you want for an estate plan after your decree is entered. You want your assets to go where they belong and not to a former spouse or their children. Talk to Mindy about estate planning and divorce. Options are available.