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How Divorce Can Affect Estate Planning

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How To Handle Estate Planning Post-Divorce

While you have settled your divorce, your estate plan may still need some revisions and changes. Estate plans are separate from a divorce and should be updated to reflect your new life and your wishes. Here are some things to consider after finalizing your divorce.

Planning for Your New Future

After a divorce, it’s necessary to take a good look at your estate plan. Any old information that includes your ex-spouse could leave you vulnerable to holes in your estate plan and your wishes not carried out as you intended. Here’s what to update in your estate plan post-divorce.

Making Estate Plan Revisions

While you were married, you most likely named your spouse as beneficiary to any money or assets you hold. It’s also possible that your ex-spouse has been named as the person to handle your financial affairs and medical decisions should you become incapacitated. You most likely no longer wish for your ex to be involved in your estate affairs and medical decisions. Here is a list of documents you should review and update as soon as possible after your divorce is finalized:

  • Power of attorney appoints an individual to manage your financial and legal affairs should you be unable to do so independently. You may also need to update your healthcare power of attorney or healthcare surrogate to make medical decisions on your behalf should you become incapacitated.
  • Wills and trusts can be tricky to navigate when making beneficiary designations after your divorce. Contact an attorney for assistance in updating wills and trusts to ensure you follow all legal guidelines. When children are involved, it may also include guardians and other child-related matters.
  • Retirement accounts such as IRAs, 401(k)s, and pension plans should be updated with your desired beneficiaries.
  • Life insurance policies should be revisited to ensure the proper beneficiaries are included.
  • Bank accounts should have a “payable on death” clause that includes the beneficiaries designated to receive your assets.

How Can I Protect My Children

If you have children, your custody agreement may play a role in your estate planning, and you may need to keep certain assets attached to your ex-spouse. In the case of estate planning that involves children and custody, it’s critical that you speak to a divorce lawyer who also understands estate planning laws. For more information about estate planning after divorce, contactOwenby Law, P.A.. Our firm is experienced in both Florida estate planning, divorce, and child custody laws.

Related Article: Does Your Estate Plan Protect Children From a Previous Marriage?

What Happens to Your Estate Plan if You Remarry?

When it comes to protecting your assets in a second marriage, you want to ensure that your money and assets are distributed to the right family members in the event of your death or incapacitation. Here are some tips:

  • Review estate plans that involve your ex-spouse. As mentioned above, you may have trusts or wills that include your ex-spouse as a beneficiary if you have children together.
  • Review your long-term plans and consider a prenuptial agreement to protect your interests and your children’s interests.
  • Talk to your new spouse about potential financial issues you may have to iron out and agree on what you want to be included in your unique estate plan.
  • Consider keeping assets acquired before marriage separate. You both likely bring assets into your marriage, so it’s critical to keep records of those assets and discuss keeping your premarital assets separate.
  • Look at your social security benefits as you may be receiving benefits from your ex-spouse. In this case, you must speak to an attorney to determine the financial impact of these benefits should you remarry.

What Happens if I Die Without an Estate Plan in Florida?

While it makes sense to ensure you have a will in place to protect your assets and children, many people still forgo creating a will. If you die without a will in Florida, your intestate assets will go to your next of kin under state “intestate succession” laws. In Florida, determining who gets what under intestate succession depends on whether or not you have living children or other close relatives upon your passing.

The Spouse’s Share of Intestate Estate

The intestate share of the surviving spouse according to Florida statute 732.102 is as follows:

  • If there is no surviving descendant of the decedent, the entire intestate estate.
  • If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the entire intestate estate.
  • If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate.
  • If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate.

Share of Other Heirs

Under Florida statute 732.103, the part of the intestate estate not passing to the surviving spouse under the above-listed statute 732.102, or the entire estate if there is no surviving spouse, descends as follows:

  • To the descendants of the decedent.
  • If there is no descendant, to the decedent’s father and mother equally, or to the survivor of them.If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
  • If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:
    • To the grandfather and grandmother equally, or to the survivor of them.
    • If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
    • If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
  • If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
  • If none of the foregoing, and if any of the descendants of the decedent’s great-grandparents were Holocaust victims as defined in s. 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.

Not all assets are impacted by intestate succession laws such as IRA funds, 401(k)s, life insurance policies, etc. These types of assets will go to the designated beneficiaries you named. For more information about intestate succession laws, speak to your estate planning attorney.

Need Help With Your Estate Plan Post-Divorce? We Are Here For You.

Updating an estate plan can be more than just changing your beneficiaries. From retirement accounts to wills and trusts, it’s critical to have an attorney assist you so you ensure your estate plan is executed properly and your wishes are carried out. Site:BusinessName} is here to answer your questions and address your concerns about your estate plan after divorce.

Contact Owenby Law, P.A. today at (904) 770-3141 to schedule a free initial consultation with our team.


Online Sunshine: The 2021 Florida Statutes