It should not be an afterthought after you are finally divorced that you might need to change your will and other estate planning documents. Rather, you should consider as soon as you know your marital relationship is on the rocks what powers and benefits your soon-to-be-ex (or someone in his family of origin) has in your current estate plan.
Begin to mull over the suitability of the other people in your life who would be better choices for those roles under these unforeseen circumstances.
Talk to your divorce lawyer about what steps you should and are allowed under Florida law to take right away during the period of separation and divorce. For example, you can change your living will to name a different person to make health care decisions for you should you become unable to do so yourself.
For estate planning steps that relate to money, assets and children, your attorney should advise you about what you can do during the duration of the divorce proceedings and what you need to delay until after the final decree.
Consider changing passwords that your spouse knows such as those to your personal email account. Talk to your attorney about what to do about access to bank accounts. Consider blocking access to your social media accounts.
Everyone’s financial and personal circumstances are unique and estate plans vary in complexity. Some of the basic documents that should be carefully reviewed for revocation or modification include:
• Will: Should you change your heirs and beneficiaries, choices for personal representative to administer your estate, guardians for minor children or trustees for testamentary trusts?
• Insurance policies, retirement accounts, stocks and other investments with beneficiaries: Be sure you change your beneficiaries on all these kinds of instruments.
• Financial power of attorney: This instrument names a person who has the power to manage your financial affairs and assets should you become incapacitated or in other designated situations.
• Trusts: Talk to your lawyer about naming new trustees and successor trustees as well as beneficiaries.
• Titling: Should you make changes to joint or sole ownership or rights of survivorship reflected in the titles to real estate, vehicles, accounts and other assets?
The divorce decree may order that some of these kinds of documents be changed or created in particular ways. Changes not controlled by the divorce may be the preference of or in the interest of the divorced spouse.
Florida safety nets
Florida law includes some protections for divorced spouses in case of untimely death after a divorce is final in case changes to estate planning documents are not yet made. For example, under Florida law, a disposition of property, money or assets in a will to a spouse becomes legally void at divorce, unless the divorce or will orders the disposition remain valid.
Similar provisions in state law nullify at divorce the appointments of ex-spouses as personal representatives or trustees, as named beneficiaries under revocable trusts, and as health care agents or surrogate decision makers.
At the filing of a divorce or legal separation, a financial power of attorney that names a spouse is terminated by law.
Since 2012, a complex law has been in effect that provides that at divorce, beneficiary designations to spouses are automatically revoked in certain kinds of accounts and instruments. Discuss this complicated law with a lawyer.
This blog introduces a wide-ranging and detailed topic that should be thoroughly reviewed with legal counsel.