Divorce is one of the most significant life changes a person can experience, fundamentally altering financial circumstances, living arrangements, and, critically, estate planning. As a legal professional in Clearwater, I see firsthand the complex web of issues that arise when a marriage ends. Many clients assume the divorce decree automatically voids every old document, but Florida law is nuanced. Failing to update your estate plan can lead to unintended consequences, leaving an ex-spouse in control of your assets or healthcare decisions after you’re gone.
We believe in a client-focused approach, ensuring your post-divorce estate plan accurately reflects your current wishes.
The impact on wills in Florida
The good news regarding a Last Will and Testament is that Florida law provides a built-in safety net. According to Florida Statute § 732.507(2), the dissolution or annulment of a marriage automatically revokes any provision in your will that affects your former spouse.
- Bequests are void: Any gift or inheritance specifically left to your former spouse is automatically voided. The law treats your ex-spouse as if they had predeceased you.
- Fiduciary roles are revoked: If your will named your former spouse as your personal representative (executor), this appointment is also automatically revoked.
However, this automatic revocation does not update the rest of your will. For example, if you named your ex-spouse as the primary beneficiary, the assets may pass to an outdated secondary beneficiary or, worse, through intestacy (as if you had no will) if no alternate is named. This is why relying on the statute alone is risky. We strongly recommend drafting a brand new will to ensure every provision is aligned with your post-divorce life.
Revocable trusts and divorce in Florida
For those who utilized a revocable living trust as the centerpiece of their estate plan, similar legal principles apply. Under Florida Statute § 736.1105, any provision of a revocable trust that affects the settlor’s (the person who created the trust) former spouse becomes void upon dissolution of the marriage, much like with a will.
- Beneficial interests terminated: Your former spouse’s right to benefit from the trust is eliminated.
- Fiduciary roles revoked: If your ex-spouse was named as a successor trustee, their appointment is revoked.
It is crucial to understand that if the trust was created jointly during the marriage, the divorce impacts the treatment of the trust assets as part of the equitable distribution process. Even with the automatic revocation of your ex-spouse’s beneficial interest, you still need to actively amend or restate your trust. This ensures that the assets are distributed to your new chosen beneficiaries and that you name a new successor trustee to manage the trust upon your death or incapacity.
Beneficiary designations on non-probate assets
One of the most frequent and costly mistakes we see is the failure to update beneficiary designations. While a will or trust is the core of your estate plan, many assets pass outside of probate based on a separate contract you have with the financial institution. This includes:
- Life insurance policies
- Retirement accounts (such as 401(k)s and IRAs)
- Annuities
- Payable-on-Death (POD) bank accounts or Transfer-on-Death (TOD) brokerage accounts
Fortunately, Florida law has an automatic revocation statute for many of these assets as well. Florida Statute § 732.703 states that a designation of a former spouse as a primary beneficiary on specific non-probate assets is void upon the final judgment of dissolution. The asset passes as if the former spouse had predeceased the owner.
However, there are critical exceptions. Federal law, particularly the Employee Retirement Income Security Act (ERISA), often governs many employer-sponsored retirement plans. In most cases, ERISA preempts state law, meaning that if your ex-spouse is still the named beneficiary on an ERISA-governed 401(k) plan, they could still legally receive the proceeds, regardless of your Florida divorce decree or state statute.
To guarantee your wishes are honored, you must proactively contact each institution and submit a new, updated beneficiary designation form.
Powers of Attorney and healthcare directives
The consequences of failing to update your documents extend beyond asset distribution. Florida law recognizes that in a divorce, you would likely not want your ex-spouse making decisions for you if you become incapacitated.
- Durable Power of Attorney: Florida Statute § 709.2109 provides that the authority of a former spouse named as an agent in a Durable Power of Attorney is automatically revoked the moment a petition for dissolution of marriage is filed.
- Healthcare Surrogate: The designation of a former spouse as your healthcare surrogate (to make medical decisions for you) is also automatically revoked upon the filing of the divorce petition.
While the law provides this protection, you need to designate a new trusted individual to step into these crucial roles. If you don’t, and you become incapacitated, a court may have to appoint a guardian, which is an intrusive, costly, and time-consuming probate proceeding.
Act now to secure your legacy
The only sure way to protect your assets and your wishes is to consult with an experienced professional and execute a complete estate plan overhaul. We specialize in providing personalized Probate Services with Client-Focused Care.
As a seasoned Florida Probate Attorney, I can assist you in accomplishing your estate planning and probate goals, ensuring your documents align with your new life. Our experience and affordable rates have made us Clearwater’s Trusted Probate Attorney.
Contact your Florida Probate Attorney today
Don’t leave your family’s financial future to chance. Reviewing and updating your entire estate plan after a divorce is not just recommended, it is essential.
Call 727-235-6005 or schedule a free consultation to secure your legal future. We are the Florida Probate Attorney serving Clearwater and beyond with 15+ Years of experience in Florida Probate Law.
