How Divorce Affects Your Estate Plan

Divorce is often a harrowing experience, taking a mental and emotional toll on those who go through it. Understandably, few in this situation are thinking about how divorce may affect their estate plan, or maybe they assume that their Will or any other document that gives their soon-to-be-ex-spouse a certain power to act or the right to receive property will be automatically canceled or revoked when the petition for divorce is filed. However, this is not the case in Florida. Under Florida law, each estate planning document is affected differently and at different stages in a divorce proceeding. This article will outline how each document is treated during a divorce and steps you can take to help avoid potential issues before they pop up.

Last Will and Testament (Will)

Many will be surprised to learn that their Will–which likely gives all or a significant portion of their assets to their spouse and probably names the spouse as personal representative of their estate–is unaffected by filing for dissolution of marriage. Only after a final judgment for dissolution is issued is a spouse’s ability to receive property or serve as personal representative under a Will terminated. That’s right, even though you may file to dissolve your marriage, because you are still legally married until the final judgment is issued, your spouse can still receive property you leave them under your Will and be the person responsible for administering your estate while the divorce is pending. But once your marriage is dissolved, your now-ex-spouse’s interest in your estate is automatically terminated. [1]

Trusts

Similar to a Will, filing for dissolution of marriage does not terminate a spouse’s ability to serve as trustee or be a beneficiary under their spouse’s trust. But once the marriage is dissolved by court order, the ex-spouse is treated as having died at the time of dissolution, so they are no longer entitled to serve as trustee or be a beneficiary under the trust, unless the trust specifies otherwise. [2]

Something to note here is that if you become incapacitated (legally unable to handle your own affairs) while the divorce is pending and your spouse is either a current or successor trustee under your trust, they can still serve as trustee while you are incapacitated. This is an important difference from how a spouse is treated under a Will since a Will only takes effect after the testator/trix dies.

Power of Attorney

Unlike with a Will or trust, a spouse’s authority to act under a power of attorney automatically terminates upon the filing for dissolution of marriage, unless the power of attorney specifically says otherwise. [3]

Designation of Health Care Surrogate and Living Will

For both a designation of health care surrogate and living will (or any other advance directive), a spouse’s authority to act is automatically revoked once a final judgment is issued. [4]

Declaration of Preneed Guardian

Florida law does not specify what happens with a declaration of preneed guardian after either the filing or final judgment for dissolution of marriage. If no declaration of preneed guardian exists and a court needs to appoint a guardian for a divorcing spouse, preference in who is appointed guardian is given to someone related by blood or marriage to the ward (the person needing the guardian’s assistance); however, courts have a lot of discretion in who they appoint, and courts will generally take into consideration any potential family issues and, to the extent the ward is able to participate, who the ward wants to be their guardian. [5] And since someone has to go out of their way–usually at significant expense–to get a court to start the guardianship process, it may be unlikely that a divorcing spouse wants to even step up to take on this immense responsibility.

Beneficiary Designations on Accounts and Property

If a spouse is listed as a beneficiary on an account, such as a bank, brokerage, or retirement account, the spouse can continue to receive the property until a final judgment for dissolution is issued, at which time the designation is void. [6] That is, except for accounts that fall under ERISA, which states that plans will be paid out to the listed beneficiary even after a final dissolution. [7]

Jointly-Titled Assets

With jointly-titled assets, Florida makes a distinction: property held by a married couple as tenants by the entirety automatically becomes a tenancy in common once the final judgment for dissolution is issued, but property held as joint tenants or joint tenants with rights of survivorship remains unchanged, even after the final judgment is issued. [8]

How to Avoid Issues

This is a lot to take in, but, for the most part, the solutions are not too complex. The simplest solution is to change your documents. This can take a while, especially if you have a lot of accounts with beneficiary designations, and certain assets require a bit more work, but it is an option in almost any situation. A way to get ahead of this scenario is to make any spousal designation or appointment in your estate planning documents conditioned on there being no pending proceeding for dissolution of marriage. This will not work for every document, but can save you the trouble of later changing all of your documents if a petition for dissolution of marriage is filed. Finally, a prenuptial or postnuptial agreement can serve as both spouses’ waiver of certain rights to which they would otherwise be entitled, such as inheritance rights. These could prevent a situation where a spouse can take either the intestate or elective share of the deceased spouse’s estate prior to the final judgment for dissolution.

As you can see, while even simple estate planning can seem confusing, adding divorce into the mix makes it much more difficult. If you are about to file for divorce, in the midst of a divorce, or just had your marriage dissolved, it is a good idea to review your estate planning documents to make sure you avoid the possibility that an already difficult situation becomes worse.

[1] § 732.507(2), Fla. Stat. (2023)

[2] § 736.1105(2), Fla. Stat. (2023)

[3] § 709.2109(2)(b), Fla. Stat. (2023)

[4] § 765.104(2), Fla. Stat. (2023)

[5] §§ 744.3045 and 744.312, Fla. Stat. (2023) 

[6] § 732.703, Fla. Stat. (2023)

[7] 29 U.S.C. § 1104(a)(1)(D)

[8] § 689.15, Fla. Stat. (2023)