A divorce is a life-changing event that touches all aspects of your life. However, one issue you might fail to realize is the importance of updating your estate plan following a divorce. After a divorce, you likely need to take some steps to review and update your estate plan. Working with an estate planning lawyer can help you make the appropriate changes to ensure that your will and other aspects of your estate plan reflect your current needs and wishes. In addition, a Florida estate planning attorney at Kramer Green can help you determine whether you need to modify your estate plan to fulfill your objectives, which may have changed since your divorce.
Updating your estate plan after your divorce can be crucial for various reasons. If you divorce and fail to update your estate plan, Florida law treats your former spouse as if they passed away before you did for the purposes of administering your will, distributing trust assets, and handling the proceeds of any financial accounts. Unfortunately, the automatic application of Florida law in this situation may not reflect your wishes in the distribution of your assets. Therefore, you should take some essential steps to update your estate plan following your divorce, which involves far more than simply updating the beneficiaries of your will.
Healthcare Surrogates and HIPAA Releases
Your estate plan typically contains documents in which you have designated others to receive your private medical and healthcare information and make these decisions on your behalf if you become incapacitated or otherwise unable to do so. The most logical person that many people choose to fill this role is their current spouse. You may have chosen a secondary or alternate healthcare surrogate or person to receive your HIPAA information when you executed these documents, but you also may not have done so. Circumstances also may have changed with that person, as that person may have passed away, become incapacitated, or your relationship may have deteriorated. That could leave you with no one to make important medical decisions on your behalf in emergencies.
Durable Powers of Attorney
Durable powers of attorney under Florida Statutes § 709.2101 et seq. allow individuals you designate to make financial and legal decisions on your behalf, such as handling your property and finances if you become incapacitated. Once again, while you may have designated a secondary or alternate power of attorney, you may not have, or that person may no longer be suitable or able to serve as your power of attorney. Therefore, you must execute updated documents if you wish another person, such as a subsequent spouse or adult child, to serve as your agent under your power of attorney. Otherwise, you could leave your family members in the position of being forced to seek legal guardianship over you if you become incapacitated, which takes time and money.
Failing to update your will beneficiary from your former spouse can result in your property being distributed in ways you did not intend. If you didn’t designate how your property should be distributed beyond going to your former spouse, then the probate court will distribute it as if you had no will at all. This distribution may or may not be what you intended, so you should update it if you want a say in how your assets are distributed.
Furthermore, failing to update your will beneficiaries can be particularly problematic if you remarry after a divorce. Although Florida automatically prevents your former spouse from receiving any inheritance through your will if you fail to update it following your divorce, it does not automatically insert your new spouse into your will unless you update it. As a result, your current spouse may not be entitled to any of your assets upon your death and may choose to exercise the elective share, which overrides the provisions in your will. This decision could disrupt any inheritances you had planned for children of a prior marriage or relationship. Therefore, to avoid these types of difficulties and to ensure that your will truly reflects your wishes, you should update the beneficiaries of your will.
Retirement Plans, Insurance Policies, and Transfer-on-Death Accounts
Some assets, such as life insurance policies, retirement accounts, and transfer-on-death bank accounts, normally pass to your named beneficiary outside the probate process. However, if you fail to update the beneficiary of these assets from your former spouse, and have named no alternate, then Florida law treats these accounts as if your former spouse is deceased. As a result, the proceeds of these accounts might roll into the probate estate for distribution according to the terms of your will.
Including Your Ex-Spouse
What if you share minor children with your ex-spouse or are still on good terms and want to include them in your estate plan? Can you leave your estate plan as is? The short answer is no. Since Florida law automatically treats your ex-spouse as if they predeceased you, they cannot inherit from you as your estate plan is written. You would have to rewrite your estate plan to designate your ex-spouse as a beneficiary of your will as an individual, not as your spouse.
Look to Kramer Green for Help with Your Estate Plan
A Florida estate planning lawyer at Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A. is prepared to assist you as you review, update, and potentially add to your estate plan. We know how to structure your estate plan to preserve your assets and relieve your loved ones of the burdens of complex probate and estate issues to the greatest extent possible. We also are skilled in helping you carry out your intentions for your estate.
Our objective is to guide you through the complex legal matters that estate planning can involve. Contact our office today at (954) 966-2112 or reach out to us online to schedule a time to discuss your estate planning issues with our estate planning attorney.