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Will My Estate Plans Change After Divorce?


Estate planning can be a complex endeavor, especially if you have significant assets that need to be managed. However, nothing quite throws a proverbial wrench in so many documents as a sudden divorce. Certain provisions in Florida law effectively disinherit your now-ex spouse unless you take steps to avoid this. It is a good idea to revisit your estate planning after a divorce so you can be sure that your assets are still intended to go where you want them to go.

Former Spouse Removed From Will

Perhaps the most important thing to be aware of is that even in an amicable divorce, your spouse will be immediately written out of your will once your divorce decree is final, even if you wish to keep them in your estate planning documents. Florida law explicitly disinherits a former spouse – it states that in the event of an annulment or dissolution of marriage, the former spouse shall be treated as if they had died before the will’s composer (also referred to as the testator). This may seem harsh, but it is one of the few legal ways to ensure that a former spouse has no rights in the disposition of property after passing.

The explicit disinheriting was to prohibit former spouses, long since divorced, from benefiting too much upon the deceased’s passing, when the deceased may not have intended for them to do so. Florida is even somewhat unique in that it disinherits a former spouse not only from benefiting in your will, but also from collecting on their life insurance policy or benefiting from their retirement benefits. Most other state laws only address wills and trusts, and require the holder of documents like insurance policies to affirmatively update them (which does not always happen).

Other Estate Planning Documents

Be advised that just like wills, revocable trusts have similar rules about transfers or gifts to one’s former spouse – after a divorce, any transfers granted to your ex-spouse will be uniformly revoked, and they will be treated as if they have predeceased you. Other estate planning instruments may be somewhat more difficult to modify, particularly those that deal with non-probate assets like life insurance. For example, any asset held in joint tenancy, such as real property or bank accounts, will remain held in joint tenancy with rights of survivorship still applying.

Perhaps most importantly, healthcare related documents like powers of attorney follow similar rules. If you have chosen your now-former spouse as your healthcare proxy (someone who can make medical decisions for you in the event you are incapacitated), that power is revoked as soon as your divorce decree becomes final. This is also true for powers of attorney and living wills, though it is worth noting that powers of attorney are the single type of healthcare document that generally goes into effect as soon as it is executed, as opposed to the other healthcare documents that only become active after your divorce is final.

Call A Naples Estate Planning Attorney

If you are going through a divorce, estate planning may be the last thing on your mind, but it is a crucial issue that must be addressed as soon as possible, so you are certain that if anything happens to you, your wishes will be respected with regard to your health and your property.

If you have questions, concerns or just want to set up a complimentary consultation to discuss your personal legal issues in a confidential setting, contact James R. Nici, the Managing Partner of Nici Law Firm, a Naples estate planning attorney with almost 30 years of legal experience.  This may be the first step toward ensuring all is how you want it to be going forward. Contact our offices today via our website, or on the telephone at 239-449-6150, to schedule your complimentary consultation.


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