Divorce and Estate Planning

If you are in the process of getting a divorce or have already, it is important to become aware of how this affects your estate plan and revisit to decide if changes are appropriate.

After Filing for Divorce

Until a final dissolution of marriage has been granted, you are still legally treated as married even if you have filed for a divorce and are in the process. Sometimes it is advisable to amend or create a will which minimizes the amount your spouse would inherit without making them eligible for the elective share. You may also wish to change beneficiary designations which name your spouse on insurance or pension plans. 

After Dissolution is Granted

Florida law treats the ex-spouse as “predeceased” once a dissolution has been granted. This means any provisions in your will and most beneficiary designations leaving something to them are not enforced – the asset instead passes as if your ex-spouse is deceased and cannot inherit. While this is convenient because it means you do not need to rush to revise documents, it means if you do wish to leave something to an ex-spouse, you will need to amend the documents to state that and eliminate references to them as your spouse.

Children 

Guardianship and asset management are the main issues to deal with for parents after a divorce. If children are born of the marriage and one parent dies, the surviving parent in most cases will be designated guardian. This is a statutory preference in Florida which can only be overcome if it is proven the surviving parent is unfit. Sometimes this creates concern over how assets will be managed. 

If no other plans are put in place, the surviving parent does gain control over inherited assets as the child’s guardian. The best way to change that is by creating a trust where a relative or friend of your choice is appointed to control the assets, in addition, you can set how and when assets can be used including when they are turned over to the children. 

As you can tell there is a lot to consider if you have filed for a divorce or recently been granted one. At every step in this life transition, the handling of your estate may not match your wishes if changes are not made. Contact Oldham & Delcamp if you want to review or create your plan – our experienced estate planning attorneys are prepared to assist. 

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