Divorce and Florida Estate Plans: What should you know?

By Nataline Garcia, Esq.

It is common for spouses to prepare joint estate planning documents or name each other in their individual estate planning documents. Florida law allows married couples to prepare joint estate planning documents. However, there are some important laws that may affect your estate planning in the event of a divorce that you should be aware of. Knowing this information can help you take the proper steps after your divorce in reference to your estate plan and ensure you and your family are protected.

How does a divorce affect your Will?

Section 732.507(2), Florida Statutes, specifically provides that “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, absent the will or dissolution of divorce judgment expressly providing otherwise.” As mentioned, the divorce will make the will void as it relates to the former spouse. In the event you have only named the former spouse in your will, the entire will is void. If you fail to create a new will, the Florida law’s of intestacy would govern the distribution of your assets upon your death. If you pass away in the process of your divorce, the will may still be valid and your spouse may still get a transfer of your assets. Make sure you properly amend, update or revise your will to avoid any unintended transfers of assets upon your death.

How does a divorce affect your Revocable Trust?

Section 736.1105, Florida Statutes, states “if a revocable trust is executed by a husband or wife as settlor prior to annulment of the marriage or entry of a judgment for dissolution of marriage or divorce of the settlor from the settlor’s spouse, any provision of the trust that affects the settlor’s spouse will become void upon annulment of the marriage or entry of the judgment of dissolution of marriage or divorce and any such trust shall be administered and construed as if the settlor’s spouse had died on the date of the annulment or on entry of the judgment for dissolution of marriage or divorce.” Unless expressly stated otherwise, if your revocable trust only names your former spouse, the Trust will be found to be void. Similar to the will, it is essential to make a new revocable trust after a divorce to ensure your Trust is still valid and enforceable. 

How does a divorce affect “Payable on Death” designations?

At times, “payable on death” designations can serve as a substitute for a will or revocable trust in that they ensure your assets, such as financial accounts or life insurance policies, do not become subject to probate and are transferred to the intended beneficiary. Under section 732.703(2), Florida Statutes, “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.” After a divorce it is necessary to ensure your “payable on death” designations are updated, or that the affected accounts are included in your revocable trust, to ensure proper distribution upon your death. If the designations are not updated, the affected accounts will likely be subject to a probate proceeding, which as discussed before, can be timely and costly.

How does a divorce affect your Health Care Surrogate or Power of Attorney?

Similarly, Florida Statute Section 765.104(2) and 709.2109(2) address the affect of a divorce on your Health Care Surrogate forms and Power of Attorney. Under Florida Statute Section 765.104(2), “unless otherwise provided in the advance directive or in an order of dissolution or annulment of marriage, the dissolution or annulment of the principal revokes the designation of the principal’s former spouse as a surrogate.” Thus, after a final judgment of divorce is entered, any health care surrogate naming your former spouse as a surrogate is revoked. Therefore, you should have a new health care surrogate document prepared to ensure you have an agent with the power to act on your behalf in the event you are unable to.

A Power of Attorney is affected differently than the will, revocable trust and health care surrogate. As it relates to your power of attorney, as soon as the divorce action is filed, the spouse named in the divorce action no longer has any power under the power of attorney. Under section 709.2109(2)(b), Florida Statutes, an agent’s authority under a power of attorney terminates when “an action is filed for the dissolution or annulment of the agent’s marriage to the principal or for their legal separation, unless the power of attorney otherwise provides.” Therefore, as soon as a divorce action is filed a power of attorney where the principal names his or her spouse as agent will terminate immediately upon the filing. Thus, if you do not have an appointed successor agent named in your power of attorney, the document ceases to be effective as soon as the divorce or annulment action is filed.

If you have recently been divorced, it is important you have an attorney review your estate planning and revise any documents that may no longer be valid by operation of law. If you have any questions please feel free to contact the Law Office of Ray Garcia, P.A., at 305-227-4030 or via email to legal@raygarcialaw.com for a free consultation.