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Divorce and Estate Planning-What You Need to Know

Updating Your Estate Plan For Divorce: Changes You Should Make

Divorce can be one of life's most stressful events, even if the process is amicable and both of you are in agreement it is the best thing to do. With so many major life changes taking place, it’s easy to forget to also update your estate plan—which can lead to you simply putting it off until it's too late. After all, dealing with yet another legal matter is probably the last thing you want to do.

However, neglecting to update your estate plan when getting divorced can have severe consequences, especially if the two of you aren't on good terms. Don't wait until the divorce is final to redo your plan—you should update it as soon as you realize the split is inevitable.

Fortunately, in the state of Florida, there is statutory law that voids provisions of a will in the name of a former spouse should a spouse forget to remove them on their own, unless expressly provided otherwise by the will, judgment, or dissolution agreement (Florida Statutes § 732.507(2)). Also, Florida Statute § 732.703 affects a former spouse's right to claim assets in the estate, insurance proceeds, or obtain distributions as a beneficiary.

If you created a joint trust with your spouse you will definitely want to come in for a review. When spouses establish joint trusts, many name one another as trustees to oversee assets in the trust should one spouse pass away, or name a spouse as a beneficiary. If this is the case you may want to create new documents. As your Personal Family Lawyer®, we can support you to ensure your estate plan is properly updated to reflect the latest changes in your life situation, family dynamics, and asset profile. Contact us as soon as you know divorce is coming, or right away if you’ve already begun the divorce process.

Update Your Power Of Attorney and Health Care Surrogate Designation

Generally, Florida Law states that once a divorce is finalized, a divorced spouse will no longer have the power to act as a Health Care Surrogate for the other (765.104(2)). If your spouse is named as the agent named in a Power of Attorney, it will terminate when the divorce is filed (709.2109(2)(b)). If you don’t have another person named as successor, the Power of Attorney document will no longer be effective the moment a divorce or an annulment is filed. All adults over age 18 should have both a durable financial power of attorney and a medical power of attorney in place.

A durable financial power of attorney allows you to grant an individual of your choice the legal authority to make financial and legal decisions on your behalf should you become unable to make such decisions yourself. Similarly, a medical power of attorney grants someone the legal authority to make your healthcare decisions in the event of your incapacity.

Since most people typically name their spouse as their decision maker in these documents, you need to take action even before you begin the divorce process and grant this authority to someone else, especially if things are anything less than amicable between the two of you.

Once divorce is a sure thing, don’t wait—contact us to get these documents created or changed. And unless your divorce attorney is an expert in estate planning, we recommend you use an estate planning lawyer to update these documents for you. There are just far too many important details in these documents that can be overlooked by using a standard form on the internet or someone who doesn't specialize in estate planning , rather than the custom documents we will prepare for you.

Change Your Beneficiary Designations

As soon as you know you are getting divorced, you should update the beneficiary designations for assets that do not pass through a will or trust, such as life insurance policies and retirement plans. Failing to update your beneficiaries can lead to serious trouble down the road.

And if you don’t have a trust in place, you should seriously consider creating one, especially if you have minor children. Trusts provide an array of benefits that are unavailable with a will, and they’re particularly well-suited for blended families. Given the likelihood that both you and your spouse will eventually get remarried—and perhaps have more children—trusts are an invaluable way to protect and manage the assets you want your children to inherit.

By using a trust, for example, should you die or become incapacitated while your kids are minors, you can name someone of your choosing to serve as successor trustee to manage their money until they reach adulthood, making it impossible for your ex to meddle with their inheritance.

Given the enhanced protection and control that a trust can provide compared with a will, you should at least discuss creating a trust before ruling out the option entirely.

Get Started Right Away

Although it may be tempting to put off changing your estate plan when you are going through a divorce, especially if the process has been difficult, you can’t afford to wait. Meet with us to review your estate plan immediately upon realizing that divorce is unavoidable, and then schedule a follow-up visit once your divorce is final.

And if you’ve yet to create any estate plan at all, an impending divorce is the perfect time to finally take care of this crucial responsibility. Contact us today to learn more.

This article is a service of Meredith Weil, Esq., Personal Family Lawyer®. We do not just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That's why we offer a Family Wealth Planning Session™, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.

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