Florida Appellate Court Confirms Status of Beneficiaries After Divorce

When couples divorce, thoughts of their own mortality may be furthest from their minds as they start a new chapter of their lives. However, one of the first things you need to do once your divorce is final, is to revise your estate planning documents, including wills, trusts, powers of attorney and health care powers of attorney, to make sure they reflect your current wishes.

Florida Family Law Statutes

Section 732.507(2) of the Florida Statutes 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.” The statute goes on to specify that any will must be construed as if the former spouse had died at the time of the divorce, unless the will, marital settlement agreement or divorce judgment expressly says otherwise.

Common Law Developments

A recent Fourth District Appellate Court confirmed the immediate intent of section 732.507 of the Florida Statutes, subsection (2). In Carroll v. Israelson the court determined that a provision of a will establishing trusts to the relatives of the deceased man’s ex-wife was essentially invalid upon the date of the divorce. In Carroll, the ex-husband died only one month after the entry of the divorce judgment. His mother brought the suit to invalidate the will’s provision leaving Thomas Carroll’s residuary estate to his ex-wife’s family.

Don’t Leave a Legacy of Pain and Litigation

The Carroll case brings into sharp focus the potential pain and heartache that we can cause our loved ones by failing to update our estate planning documents after divorce. If you are going through divorce proceedings, do not wait until the final judgment to be entered before you start changing your beneficiaries. It is a good idea to speak with an attorney about, not only your will and any trusts you may have, but also:

• Life insurance policies
• Transfer-on-death brokerage accounts
• Retirement accounts
• Pay-on-death bank accounts

You should also look at your healthcare and financial power of attorney documents to ensure that you are not leaving important decisions to your former spouse. Revising these documents as soon as possible and making your new power of attorney aware of the change can save heartache in the future.

If you have children, it is also important to consider naming a new guardian for them in the event that you are incapacitated and believe your ex-spouse to be unfit to take care of them.

While some people may wish to write out their former spouse as a beneficiary, there are cases in which an ex-spouse does in fact want to provide for his or her ex-spouse after death. In a situation such as this, a person may create a will or trust that explicitly names the ex-spouse as an irrevocable beneficiary, in order to avoid the nullification provision of section 732.507.

If you are considering divorce, or have already begun proceedings and are concerned about your estate plan, talk to the Florida estate planning attorneys at McMichen, Cinami & Demps. Call us today at (407) 898-2161 or complete our online form.

Contact Our Divorce Law Firm in Orlando, FL

Contact the experienced Orlando divorce lawyers at McMichen, Cinami & Demps today for legal assistance. Contact our Orlando, FL office at (407) 898-2161 to schedule a free consultation.

McMichen, Cinami & Demps – Orlando Office
1500 E Concord St
Orlando, FL 32803