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How Does Divorce Effect Your Estate Plan

Mon, Feb 15, 2016 at 4:00PM

Upon divorce, a marital settlement agreement states how joint assets shall be distributed. However, in the event of death prior to changing the beneficiary designation, it is important to know how assetswill be distributed.

Prior to 2012, absent a marital settlement agreement specifying a beneficiary of the asset, the courts only had to look at a beneficiary designation to decide who the asset legally belonged to. If an ex-spouse was inadvertently left on an account such as a retirement account, annuity, or life insurance policy, then the ex-spouse would have legally been entitled to the asset, absent a marital settlement agreement stating differently. In 2012, Florida enacted F.S. §732.703, which 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 is 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."

Florida law has long provided a different result for wills, trusts and other related documents. As to wills, F.S. §732.507(2) 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. As to revocable trusts, F.S. §736.1105 provides that any provision of the trust that affects the settlor's spouse will become void upon annulment of marriage or divorce.

If a principal names his or her spouse as his or her health care surrogate, a divorce automatically revokes that designation. Under a power of attorney, if the spouse is named, the designation is automatically revoked upon filing for divorce or legal separation.

Although Florida law is designed to make sure the ex-spouse is automatically revoked from estateplanning legal documents, it is always best to consult an attorney.

How Does Divorce Effect Your Estate Plan

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