When people prepare for divorce, they start to plan their post-divorce life. They may do things like get their spouse’s names off of bank accounts, figure out where they will live, take names off of insurance policies, and all the other things that go with the transition from married to single life.
But one thing that many soon-to-be-divorced people do not take time to think about is estate planning.
If you are someone who has thought ahead and has an estate plan already, that is good news. However, the estate plan you drafted when you were married (or, for that matter, even before you were married) may not work for you once you are divorced.
In fact, your estate documents may be completely invalid post-divorce.
Conflicts Between Family Law Documents and Estate Plan Documents
If you have an estate plan already, any agreement that you make in relation to your divorce, such as a mediation agreement, marital settlement agreement, or any pre or post-nuptial that you sign, will take precedence over your estate documents in the event that there is a conflict.
This often happens—people will draft an estate plan and later agree to a divorce settlement agreement, not aware that they are conflicting with the prior drafted estate plan.
This can lead to people not getting what you intended them to get in your estate plan, or worse, to fighting between family and former spouses in probate court. Your estate could be tied up for years.
This means that if you already have an estate plan, it must be revised post-divorce to eliminate any conflict with any document you sign in relation to the divorce.
Amending or Redoing Your Will
With all the changes that come with divorce, you may be best served just revoking your will and drafting an entirely new one. That is because of all the changes that need to be made in your will post-divorce.
For example, your will may have appointed your spouse as the executor of your will. You may no longer want this to be the case after your divorce.
For the purposes of a will, upon divorce, the law treats the spouse as having died (again, this is for the purpose of administering your estate plan). That means that whatever funds, money, or assets you left to your spouse now have nowhere to go and could be distributed by the Probate Court per Florida’s intestate statutes.
Healthcare Proxies and Medical Decision Making
Many wills and other estate documents appoint healthcare proxies — that is, people who will make the essential medical decisions for you in the event you are temporarily or permanently incapacitated or if you can no longer make these kinds of informed healthcare decisions for yourself.
You likely may have appointed your spouse to be this person, and you may no longer want this to be the case in a divorce.
If you had no designated healthcare surrogate, healthcare proxy, or power of attorney, you can no longer just rely on a hospital or doctor just listening to your husband or wife. Now that you will be single, you should have these documents executed to designate whomever it is you want to fill this role.
If you have a living will that designates your end-of-life care (such as a do not resuscitate order), some living wills and the authority for your designated spouse to help carry out your wishes will terminate once the dissolution of marriage is entered. That means that although you indicated your wishes for end-of-life care, there is nobody with the legal capacity to make those wishes happen for you if you do not amend these estate documents.
Powers of Attorney
Per Florida law, any kind of power of attorney (not just one that addresses healthcare) terminates on the filing of the divorce itself. That can be good, as you may no longer want your spouse to be your power of attorney. But it does mean that you will need to replace your spouse with whomever it is you want to take that role.
Death Before Divorce
Divorce cases can be very contested and can drag on for a long time. What if something were to happen to you before a final judgment was entered? Technically, you are not divorced yet, and Florida law has powerful laws that make it difficult to disinherit a spouse, even one you are in the process of divorcing.
Your estate plan should have contingencies in case something were to happen to you before the divorce is finalized.
Other Documents
Your estate plan is more than wills and trusts. It also may include deeds to properties, bank accounts that you designated as “payable on death,” or life insurance policies with named beneficiaries. Your soon-to-be ex-spouse may stand to benefit from any of these, and you may no longer want that to be the case. These all need to be altered to reflect your life post-divorce.
Trusts
Did you set up a trust during your estate plan? Florida law says that if you did establish a revocable trust, there will be little impact on the trust itself; the law acts as if your spouse “died” upon divorce for the purpose of the spouse, thus eliminating him or her as a beneficiary, even if they are named.
But if your spouse is “deceased” (for the purpose of the trust), what happens to his or her trust distribution? It may go to someone you don’t want those assets going to, such as one of your spouse’s relatives.
And if you do want your soon-to-be ex-spouse to continue to inherit through the trust, your marital settlement agreement or court order needs to say that.
Minors and the Disabled
Does your will or trust leave something to a minor child? Or an adult child who may be disabled and not able to properly care for or use the assets or money you have left to him or her?
It used to be that you could rely on your spouse to safeguard the funds or to help manage them for the benefit of the minor or disabled child. But now, with no spouse, you may want to re-establish a trust, and name a trustee, to help manage the funds until the child is older or to distribute the funds in a way that ensures that what you are leaving to your child is not wasted or misused.
If something were to happen to you, your ex-husband or wife would be the legal guardian of the child, which makes sense, as they are the natural surviving parent. But sometimes, this is not possible. Perhaps a spouse is incarcerated or simply cannot handle full-time parenting because of time or other concerns.
Your estate plan will have to designate a guardian to care for minor children, which can serve as a backup plan in the event that your spouse cannot or does not want to take that role now or in the future.
Divorce is a big change in your life, but we can help you navigate it and answer whatever questions you may have. Contact us for help in planning for your divorce and for life after divorce.