Post-Divorce Estate Planning in Florida

Divorce changes far more than your marital status. It can also change who you want to inherit your property, who you trust to make medical or financial decisions for you, who should receive your life insurance proceeds, and how you want your children to be protected if something happens to you. This is where post-divorce estate planning comes into play.

Once their divorce judgment is entered, many people assume that their old estate plan automatically changes. While some provisions of a will may become invalid after a divorce, this is not a substitute for creating a comprehensive new estate plan. Our Florida estate planning attorneys can update your will and other estate planning documents to protect your future after a divorce or separation.

At Luhrsen Goldberg, our Florida attorneys help clients address the legal issues that arise after major life changes, including divorce, remarriage, blending families, and other changes in your personal and financial circumstances. Our team has experience in both estate planning and family law, giving us a unique perspective on how divorce can impact your estate plan. Contact us today to schedule a free consultation with a Florida post-divorce estate planning attorney.

Why Estate Planning Should Be Part of Your Post-Divorce Checklist

After a divorce, you may have a dramatically different financial and family situation. You may have:

Received assets through a divorce settlement
Sold or transferred your marital home
Opened new bank or investment accounts
Changed your retirement accounts
Purchased or changed life insurance
Become responsible for raising children independently
Started a new business
Remarried or begun planning to remarry
Taken on new debts or financial obligations

Even if you already have an estate plan, it should reviewed and as appropriate, updated to reflect these and other changes.

Leaving an outdated estate plan in place can create confusion and unnecessary complications for your family. In this way, changing your estate plan after divorce isn’t about simply removing your former spouse. It also allows you to create an estate plan that accurately reflects your life after divorce.

Does Divorce Automatically Change Your Will in Florida?

Florida law provides an important protection for people who divorce. Under Florida law, a provision of a will that affects a person’s spouse becomes void upon dissolution of marriage. The will is construed as though the former spouse had died at the time the marriage was dissolved. However, there are exceptions to this rule, including situations involving a later will, specific contrary language, or provisions in the divorce judgment.

This means that a divorce can change the legal effect of your existing will, but you should not rely on this rule as your estate plan. Your former spouse may still appear throughout your documents, and your successor personal representative may no longer be the person that you want to handle your estate.

In addition, there are other documents in an estate plan that may need to be changed, such as your powers of attorney and healthcare documents. Beyond that beneficiary designations associated with some accounts held by you require updating as well. A complete review of your estate plan will allow your attorney to determine what changed automatically under Florida law and what still needs to be changed manually or otherwise updated.

Updating Your Florida Estate Plan After a Divorce

If you are in the process of getting divorced or your divorce is already complete, it’s a good time to review your estate plan. This can involve several steps.

Review Your Will: Your last will and testament is one of the first documents you should review after a divorce. Ask yourself:
- Who is currently named as my personal representative?
- Who inherits my property?
- Who are my backup beneficiaries?
- What happens if one of my children dies before me?
- Are my children’s inheritances protected?
- Does my will reflect the property I received in the divorce?
- Does the will contain provisions concerning my former spouse?
- Do I need a trust for a minor or young adult child?
Even if Florida law has already invalidated provisions benefiting your former spouse, an outdated will may no longer accomplish what you want. A new or amended will can provide clearer instructions and reduce uncertainty for your family. For example, if your former spouse was named as the executor of your estate, with your sister-in-law as the back-up executor, you may want to change your will so that you have an entirely new executor named in your will.
Review Your Trusts: If you have a revocable living trust, irrevocable trust, children’s trust, or another estate planning trust, divorce should trigger a careful review. Trust documents can be more complicated than wills because they may control assets during your lifetime as well as after your death. Depending on the circumstances, you may need to consider:
- Whether your former spouse remains a trustee
- Whether your former spouse remains a beneficiary
- Who should serve as successor trustee
- Whether children should receive assets outright or in trust
- How assets received through the divorce should be titled
- Whether an existing trust still serves your goals
- Whether a new trust is appropriate
You shouldn’t assume that changing your will automatically changes your trust. Different documents often control different assets, and typically have different legal requirements.
Review and Change Beneficiary Designations: One of the most important (and frequently overlooked) parts of post-divorce estate planning is reviewing beneficiary designations. Some assets pass outside of probate based on a beneficiary designation rather than the instructions in your will. These may include:
- Life insurance policies
- Retirement accounts
- Certain investment accounts
- Payable-on-death bank accounts
- Transfer-on-death accounts
- Annuities
- Certain employee benefit plans
Florida law contains provisions addressing the effect of divorce on certain beneficiary designations, but those rules have exceptions. For example, federal law may control certain retirement benefits, such as 401(k)s. A divorce judgment may also impose continuing obligations for particular assets. For that reason, it is important to review each account individually. Changing your will while leaving an outdated beneficiary designation untouched may mean that the asset ultimately passes to a different person than what you would have wanted.
Update Your Power of Attorney: A durable power of attorney allows another person to make certain financial or legal decisions on your behalf. During a marriage, it is common for spouses to name one another as agents. After a divorce, however, you may no longer want your former spouse to have that role. You should review:
- Your primary agent
- Your successor agent
- The powers granted to your agent
- When those powers become effective
- Whether the document is still consistent with your wishes
Carefully consider who you would trust to manage your finances if you became incapacitated. This may be an adult child, sibling, trusted friend, professional fiduciary, or another person you know and trust.
Update Your Healthcare Documents: If you have documents related to your healthcare wishes, they should also be reviewed. Check your healthcare surrogate designation and other advance healthcare documents to determine whether your former spouse is still named to make healthcare decisions for you. You should also consider whether your instructions adequately address your current wishes concerning medical treatment. If you have remarried, you may want your new spouse to serve in that role in some capacity. Alternatively, you may prefer an adult child or another trusted person to be your surrogate. The important point is that your documents should reflect your current wishes rather than what you wanted when you were married.

How Florida’s Homestead Rules Apply to Post-Divorce Estate Planning

Florida’s homestead rules can make post-divorce estate planning particularly complicated. Florida law places significant restrictions on how a homestead can be devised at death. Under these laws, a homestead cannot generally be devised if the owner is survived by a spouse or minor child, subject to specific exceptions.

Florida law also provides special rules governing how homestead descends when an owner dies, survived by a spouse and descendants. This is particularly important for divorced parents and people who remarry. For example, someone who owns a Florida home and has minor children from a prior marriage may have estate planning goals involving the house that can’t be accomplished simply through a provision in their will.

Homestead, title, trusts, marital status, and the presence of minor children can all impact how this can occur. Because of these restrictions, Florida homeowners should obtain legal advice before changing how their homestead is titled or attempting to use a trust or will to control what happens to the property after death.

Post-Divorce Estate Planning When You Have Children From Your Marriage

Children can make post-divorce estate planning more complicated. You may want your children to inherit your property. At the same time, you don’t want their inheritance to be controlled by the other parent in the event of your death.

This can raise important questions. For example, if your child is a minor when you die, who will manage property inherited by that child? Should you set up a trust for your child?

These are estate planning questions, not just divorce questions. A properly structured estate plan can coordinate your wishes for your children with the parenting plan established through your divorce.

What If You Are Paying or Receiving Alimony?

Alimony/spousal support and other obligations created during divorce can also intersect with estate planning. Your divorce judgment or marital settlement agreement may contain provisions that affect your financial obligations after death. For example, some agreements may require a spouse to maintain life insurance or other assets to secure an obligation pursuant to the divorce agreement.

Your estate planning attorney should review your final documents before making any significant changes to your insurance policies, beneficiary designations, or other assets. Your estate plan and divorce agreement should work together rather than conflict with each other. With experience in both estate planning and divorce, our Florida post-divorce estate planning lawyers can easily coordinate these two aspects of your case to make sure that your legal obligations are fulfilled.

Estate Planning Challenges When Getting Remarried In Florida

People who are getting remarried or are already in a second marriage in Florida can face several estate planning challenges. These include issues related to blended families, such as the rights and obligations pertaining to estate planning and homestead protection, and asset ownership issues for unmarried couples.

Divorced people with wealth may also face unique estate planning challenges in Florida. Additionally, same-gender couples should be aware of the importance of estate planning in Florida and the consequences of failing to plan. If a person fails to update their will after remarriage, their spouse can still claim an inheritance under Florida law.

Updating Estate Plans After Getting Remarried In Florida

After remarriage, updating an estate plan in Florida is important to ensure the new spouse is protected. This includes recognizing changes in beneficiaries upon death and updating the plan to reflect any changes due to divorce.

If you remarry after divorce, you may have competing or overlapping goals, such as:

Protecting your new spouse
Providing for children from your first marriage
Protecting assets you brought into the new marriage
Deciding how jointly acquired property should pass
Providing for children you have with your new spouse
Avoiding unintended conflicts between beneficiaries
Coordinating a prenuptial or postnuptial agreement with your estate plan

Florida law states that a provision of a will signed by a married person that affects the spouse is void upon divorce. Therefore, if a person has not updated their will after remarriage, their spouse may be able to claim inheritance rights. It is also vital to consider other factors, such as changes in family members or changes in Florida law, when updating an estate plan. An experienced Florida post-divorce estate planning attorney can help guide individuals through updating their estate plans after remarriage in Florida.

Contact Luhrsen Goldberg For A Florida Post-Divorce Estate Planning Lawyer

People who went through a divorce or are looking to remarry come to Luhrsen Goldberg for a Florida post-divorce estate planning lawyer. These individuals turn to us because they realize that our team of passionate attorneys is dedicated to helping them understand and overcome their estate planning challenges. We welcome the opportunity to provide you with Law Powered by Women® legal assistance. Contact us today.

Why You Should Choose Luhrsen Goldberg For A Florida Post-Divorce Estate Planning Lawyer

Founded in 2016 by Julie S. Luhrsen, Esq. and Christina A. Goldberg, Esq., Luhrsen Goldberg is a woman-owned and led boutique law practice. We are committed to fighting hard for our clients and putting our life experiences, perspectives, and skills to work for you.

Individuals who went through a divorce or are remarrying and in need of a post-divorce estate planning lawyer in Florida come to Luhrsen Goldberg because they know we have extensive experience in numerous areas of family law. When you seek a post-divorce estate planning attorney in Florida, our team of committed professionals welcomes the opportunity to provide you with Law Powered by Women® legal assistance.