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What Effect Does Divorce or Remarriage Have On Your Estate Plan

Anytime there is a major life change, whether it is the birth of a child, marriage, or divorce, your estate plan should evolve as your life evolves. But do any of these events result in automatic changes to your estate plan, or do you have to update your estate plan after each event?

In most states, including Florida, a divorce may automatically affect the validity of the terms of your will. Fla. Stat. § 732.507(2) provides that any provision of a will that affects a former spouse will be treated as if the former spouse died at the time of the divorce, unless the will or divorce judgment expressly provides otherwise. This means that when your divorce is official, any portion of your will devising any of your assets to your ex-spouse will be deemed void. However, if you want to provide for your ex-spouse in some fashion after the divorce, it is important that your will clearly reflect that intent.

Similarly, if you already have a will and then you get married, your marriage automatically provides your new spouse with a statutory entitlement to a portion of your estate, barring an exception, such as a pre-nuptial or post-nuptial agreement. Fla. Stat. § 732.301 provides that your new spouse receives a share of your estate equal to what they would have received if no will existed.  This share could range from one half of your estate to the entire estate. Therefore, it is important that your will reflects your current intent for distributing the assets in your estate.

In addition to the assets that pass through probate, when getting divorced, you also have to consider any life insurance policies and retirement accounts you may have which name your ex-spouse as a designated beneficiary. In most states, once your divorce is finalized, your ex-spouse will be automatically removed as a beneficiary on any retirement accounts and life insurance policies. Originally, the rule in Florida did not automatically revoke the designation, which meant that the account or policy holder had to manually change each form after finalizing the divorce. Luckily, Fla. Stat. § 732.703(2) now provides that these designations are considered void at the time the marriage is dissolved. However, unlike with a will, marriage does not automatically entitle your new spouse to any benefits from life insurance policies or retirement accounts.  For now, if you wish for your new spouse to be the beneficiary on these policies or accounts, you will have to edit the necessary forms. Additionally, certain assets that are governed by the Federal Government may be treated differently, and not subject to Florida Statutes that void the designation.  Therefore, the best course of action is to make sure that all of the documents reflect your current intention for beneficiary designations.

This article is meant to provide an overview of the effects of divorce and remarriage on estate planning. Individuals who have questions about how a divorce or remarriage could affect their existing estate plan should consult an attorney. Please do not hesitate to contact the attorneys of Chepenik Trushin LLP, who are ready, willing, and able to assist with your estate planning and probate litigation needs.


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