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Estate Planning After a Divorce: Your Questions, Answered

When you make your estate plan with your spouse, you’re probably not thinking about what would happen if you eventually divorced. However, many people are in this exact situation. With all the elements that go into filing for divorce, many people overlook updating their estate plans to reflect their new marital status. Updating your estate plan after a divorce will ensure the people entitled to your assets are the people you want to receive them. Below, we answer some of the most common questions about updating your estate plan after divorce. 

Can My Ex Claim an Inheritance After a Divorce? 

Florida laws provide stipulations to prevent ex-spouses or partners from inheriting your estate after you pass away, even if you don’t update your estate plan. Florida Statute 732.703(2) states that beneficiary designations made to a former spouse are void if made before filing for divorce. This means that if you named your ex-spouse as a beneficiary on any asset that allowed beneficiary designations (such as an IRA or savings account), their entitlement to the asset is revoked once the divorce is finalized. In these situations, the state treats your ex as if they died before you, so any assets they would have received will go to the next successor as determined by the will or Florida’s intestate laws. 

Note: this law only applies to beneficiary designations made after July 1, 2012. 

Who Gets My Kids? 

In most cases, the surviving biological parent will get custody of your children if you pass away after getting divorced. Even if you name a different guardian for your minor children in your will, your preference won’t override the other parent’s legal rights to their child. However, naming a guardian in your will provides an official document stating your desires for your child’s care after you pass away.

When Should I Update My Estate Plan When Getting Divorced? 

The most common time to update your estate plan is after the divorce is finalized. This allows you to start a new chapter with a new estate plan that accurately reflects your current assets and desired beneficiaries. Consider removing your spouse from your estate planning documents before filing for divorce, also. Otherwise, the state will execute your original will and treat your estate like you’re still married, and your spouse would be entitled to your estate.  

How to Change Your Estate Plan After Getting Divorced 

Florida Statute 732.703 only prevents your ex from inheriting assets with beneficiary designations. You’ll need to update other estate planning documents individually for different assets and personal possessions. Here are some documents you should consider updating:  

Advanced Directives

Advanced directives allow you to name someone to make medical decisions on your behalf if you become incapacitated and cannot make those decisions yourself. If your ex-spouse is listed in your advanced directives, you’ll want to select someone else to fulfill this role. 

Wills

Many of the assets and beneficiaries you listed in your last will and testament will likely change after your divorce. Consider drafting an entirely new will and revoking the old one after the divorce. You should consider updating who you appoint as your personal representative and which beneficiaries you’d like to name. 

 Revocable Trusts

If you placed assets in a trust when you developed your estate plan, you’ll want to modify it and make adjustments based on the assets currently in your possession. Often, couples place marital property in these types of trusts, which can be sold or change ownership during the divorce. You’ll also want to remove your ex as a co-grantor of the trust. 

 Powers of Attorney

If you’ve given your ex-spouse power of attorney to make decisions on your behalf, you’ll want to create a new POA document with a different person listed. 

Update Your Estate Plan After a Divorce with Peppler Law, P.A. 

Thomas R. Peppler is an experienced estate planning and family law attorney who understands the intricacies of divorce proceedings and creating estate plans. He can help ensure that your estate plan accurately reflects your final wishes. Call our Oviedo, FL office to discuss how we can draft an estate plan that fits your needs now and in the future. 

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