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David Toback, Attorney at Law
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Do You Always Need to Change Estate Documents After a Divorce?

We all know that the issue of estate planning tends to come up when you or someone you know gets sick. But it also comes up in the context of divorce. A divorce is a trigger to many clients, pushing them to either create documents, or revisit already created ones, to make sure that an ex-spouse doesn’t receive anything the other one doesn’t want him or her to receive.

But whether you need to visit an estate attorney after a divorce largely depends on what kind of assets you have, and what you want to do with them.

Florida Law Protects Divorced Spouses

As a general rule, Florida law provides that any provision in a will that leaves property to a spouse is void if the parties end up divorced. The same is true for some trusts. The same is also true if you were to designate a spouse as your health care surrogate, or guardian. Upon divorce, those provisions are void.

This is also the case for beneficiary-designated assets, like funds to a life insurance policy, IRS, or other pay-on-death accounts. If a spouse is the recipient of the funds or proceeds, Florida law will presume that is no longer the case after divorce.

Real estate is protected as well. Normally, if you own real property with your spouse, the property is considered held as “tenants by entirety” (TBE), and upon the death of a spouse, the property reverts to the other. But on divorce, the TBE status is by law destroyed, and you and your (now ex-spouse) will hold the property as tenants in common, which does not provide for automatic transfer upon death (of course, if you want the property out of your spouse’s name completely, that’s something you’d likely have to resolve in your divorce itself).

Estate Issues in Divorce

The good news is that you don’t have to worry about an ex-spouse inheriting something, or having responsibility or authority that you didn’t intend. The bad news is that if those provisions of your documents are void, you will need to amend or execute new documents, to fill in someone else to inherit property or take those responsibilities.

There are also other factors to consider. For example, even though the law says that a payable-on-death benefit is void as to the former spouse, a divorce decree may specifically order that the benefit be maintained by a spouse, for the benefit of the ex spouse.

Some irrevocable trusts are not addressed by state law—they survive your divorce. So, if your spouse was the beneficiary on an irrevocable trust, he or she may still be even after the divorce. If you want your spouse removed, that is something that will have to be dealt with in your divorce.

These are all reasons why, if you have significant assets, and a complex divorce, you may want to consult with an estate planning attorney or have one at the ready for consultation, before and during your divorce. Waiting until after a judgment is entered could prohibit you from making important estate planning decisions.

Divorce and estate planning are sensitive issues. Contact Tampa business and probate attorney David Toback to discuss your needs and make sure your estate is managed correctly and that your documents change to reflect your needs as your life moves forward.

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