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Revising Your Estate Plan After a Divorce

attorney discussing estate planning after divorce

Your Naples estate plan must be reviewed and revised after any significant life event, especially a divorce. This update needs to include more than just a new will. Below are five issues that must be addressed when estate planning after a divorce in Naples, Florida.

1. Create a New Will

If you were like most married couples in Naples, your will left everything to your spouse. And if you are like most Naples divorcees, that is not what you want to happen now. You should revoke your will and create a new one that reflects how you want to now distribute your assets. You should also update your executor appointment if your ex-spouse is named.

If you forget to update your will, Florida law voids provisions of a will that name your ex-spouse as a beneficiary (unless expressly provided by the will, judgment, or dissolution agreement). The court will interpret your will as if your ex-spouse has predeceased you.

2. Update Your Trust

You should review and update all trust documents. Your spouse was likely named as a trustee or beneficiary in these documents. Furthermore, the assets funded into the trust could have been affected by property division during the divorce. An attorney can assist you in reviewing your trust documents and creating new documents that reflect your current needs.

3. Revise Your Power of Attorneys and Advanced Directives

Spouses typically name each other as their financial and healthcare power of attorney agents and healthcare surrogates in an advanced directive. In this role, your spouse can make healthcare and financial decisions on your behalf if you become incapacitated. Typically, an ex-spouse will immediately be revoked as your health care surrogate in Naples once a divorce is finalized. Your spouse’s authority as a power of attorney agent terminates when a divorce action is filed.

Once your divorce is filed, you should revoke our old powers of attorney and advanced directives and create new documents naming a new agent and healthcare surrogate. Examples of potential agents and healthcare surrogates include adult children, siblings, and trusted friends. You should contact all the individuals and institutions that have copies of the revoked documents and provide them with a copy of your new powers of attorney and advanced directive.

4. Update Your Beneficiaries

Some of your assets pass outside probate and are not controlled by the provisions in your will, such as retirement accounts (401(k), IRA, pensions, etc.), life insurance policies, and jointly owned property. It is critical to update your beneficiary designations on these accounts if your ex-spouse is named. In each case, you need to contact the involved institution and request the proper form to change beneficiaries.
Florida state law does not provide the same level of protection in voiding the transfer of non-probate assets to an ex-spouse. You must be proactive and ensure that these changes are made. Otherwise, your ex-spouse could end up receiving this property after your passing.

5. Retitle Assets

In addition to updating your will, trust, and beneficiary designations, you must retitle your assets to reflect any changes in property ownership that the court made during the divorce. Your attorney can assist you in carefully retitling assets as outlined in your divorce decree and property settlement agreement. If you changed your name as part of the divorce, you need to confirm the new deeds, titles, and accounts reflect your new name.

6. Plan for Minor Children

If you have minor children at the time of the divorce, you must think about who you want to have physical custody of your minor children when you die and who will be the guardian of any property you leave to your minor children. You can address these issues in your post-divorce will or trust.

Typically, Naples’ courts will grant physical guardianship of your children to the surviving parent if you die. However, you should include your choice of guardian if you have serious concerns about your ex-spouse’s ability to parent, such as a history of abuse or addiction. Additionally, you may want to update who you want to care for your children if both parents die, especially if the individual you originally named is a former in-law.

Call A Naples Estate Planning Lawyer

If you have questions about estate planning after a divorce, you should contact Nici Law Firm. James R. Nici is an experienced Naples attorney with over 25 years of experience. He is well versed in these issues and can create an estate plan that fits your needs. Contact our office today at (239) 449-6150 or use our web form to set up a free consultation.

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