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Saturday, March 19, 2022

Importance of Revising Your Estate Plan Before and After Divorce

One of the first things you should do after getting a divorce is to change your will, trust, and other estate planning documents. It is easy to procrastinate on doing so because you might find yourself busier than ever with your new lifestyle and because you might feel emotionally wrung out and tired of handling legal matters. It is actually best to review your estate plan both before and after going through a divorce.

The adverse consequences of not updating your estate plan documents could be startling. A Florida estate planning attorney can help you craft a new estate plan tailored to your new goals and needs. Let’s explore the importance of revising your estate plan before and after divorce.

Getting Your Ducks in a Row Before Divorce

Life insurance policies, retirement accounts, and investments can be a significant portion of your estate. Some people name their spouse as their beneficiary either by name, like “Sally Brown,” or by relationship, like “my wife.” Also, your bank accounts might have a “pay on death” (POD) or “transfer on death” (TOD) instruction with the spouse listed as the person to receive the account upon the account owner’s demise.

You will want to talk with your lawyer about whether any of these things count as separate property as opposed to marital property. Unless you have a prenuptial agreement that provides otherwise on specific assets, you will not be allowed to make changes to the title of assets before or during a divorce because your spouse might receive a portion or all of that asset in the property distribution of the divorce. You should, however, make a detailed inventory of all assets and note the beneficiary and other designations.

What to Do After the Divorce

As soon as the divorce is final, you will want to sit down with your estate planning lawyer. Take your existing estate planning documents, your divorce papers, and your asset inventory with the beneficiary and other information. Go through each item to discuss them and decide on all the changes you would like to make.

What Happens to Will Automatically After Divorce

Florida law renders the portion of your will relating to your former spouse automatically void unless the divorce decree, dissolution agreement, or will itself contain different terms. Still, it is best to draft a new will to avoid headaches down the road.

Also, if your prior will left a substantial portion of your estate to your then-spouse, the proportionate distribution of your assets can get oddly skewed if the court simply lines through the provisions pertaining to your ex. You will likely want to create a new formula of distribution among your friends and relatives.

Trusts and Living Trusts

Many married couples create joint living trusts, wills, or trusts for their children. You will want to review these documents, particularly the provisions that mention your former spouse as a co-trustee, successor trustee, or beneficiary of the will or trust. It is often best to revoke the prior documents and create new ones.

Powers of Attorney and Health Care Decisions

The Florida statutes generally void the designation of the former spouse as the decision-maker in your Health Care Power of Attorney, Advance Directive, or Living Will, but to spare your family from having to litigate this issue, you will want to draft new documents naming someone else for these roles. Also, you will want to name a new person to handle your financial matters in your durable power of attorney if your existing document names your former spouse.

A Florida estate planning attorney can analyze your estate planning documents and draft new papers for you after your divorce. Contact our office today, we offer a free consultation.


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The Law Office of Jeffrey A. Herzog, P.A. assists clients in Florida, including North Pinellas County, Palm Harbor, Trinity, West Pasco County, and the surrounding areas.



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| Phone: (727) 789-4000

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