In a Florida Probate proceeding one of the principal guiding aspects of the law is to give meaning and intent to the desires or wishes of the decedent. Therefore the case law interpreting will provisions in Florida is construed to favor the intent of the decedent where possible. One challenge that occurs is when a testator (person writing will) fails to update their estate planning documents to account for a divorce. Florida Stat. 732.507 of the Florida Probate code provides some guidance:
732.507 Effect of subsequent marriage, birth, adoption, or dissolution of marriage.—
(1) Neither subsequent marriage, birth, nor adoption of descendants shall revoke the prior will of any person, but the pretermitted child or spouse shall inherit as set forth in ss. 732.301 and 732.302, regardless of the prior will.
(2) 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. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise.
The failure to update your estate plan after divorce will thus automatically create a scenario where the named spouse is artificially treated as though he or she has predeceased the decedent. This may or may not completely alter the intended distribution scheme in the Last Will and Testament so understanding how your documents will be construed or simply drafting a codicil to clearly specify your intent is crucial and can save your family the expense of unnecessary probate litigation.
The same basic concept and premise holds for a revocable living trust. The effect of divorce in Florida on your revocable living trust is covered by Fla. Stat. 736.1105 which provides:
736.1105 Dissolution of marriage; effect on revocable trust.—Unless the trust instrument or the judgment for dissolution of marriage or divorce expressly provides otherwise, if a revocable trust is executed by a husband or wife as settlor prior to annulment of the marriage or entry of a judgment for dissolution of marriage or divorce of the settlor from the settlor’s spouse, any provision of the trust that affects the settlor’s spouse will become void upon annulment of the marriage or entry of the judgment of dissolution of marriage or divorce and any such trust shall be administered and construed as if the settlor’s spouse had died on the date of the annulment or on entry of the judgment for dissolution of marriage or divorce.
So in Florida, similar to a Last Will and Testament, the effect on divorce is a construction as though the ex-spouse predeceased the decedent. Make sure you examine your trust after a divorce and understand how that will effect distribution.
Finally other beneficiary designations will likely be voided as well. Recent changes to Florida Law provide for the invalidity of specific beneficiary designations after divorce. See Fla. Stat. 732.703. If you have been divorced, check with your financial institutions and update your beneficiary designations.
Additionally, make sure you have obtained and keep a copy of your divorce decree or Final Judgment of Divorce. In some circumstances the Final Order will have specific direction as to ownership of accounts/assets that are identified in the Estate Planning documents that will control distribution.
If you have questions about any of the above information just give us a call. We offer no obligation free consultations for cases throughout Florida.