Effect of Divorce on the Estate Plan – What Happens in Florida

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A surprisingly large number of people fail to update their estate plans after getting divorced.  Fortunately, a number of laws update your estate plan for you automatically upon divorce.  Depending on the type of asset, the law will provide a set of rules.  Here are the rules for Florida.

Last Will and Testament

For more than five decades, Florida law has provided that any provision of a will in favor of a divorced spouse is treated as if the surviving former spouse is already dead.  Florida statute Section 732.507(2) provides as follows.

Any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise.

The exceptions to the rule – unless the will or divorce judgment provides otherwise – play a large role in probate in Florida.  We see a significant number of wills and estate plans provide for an ex spouse.

The source of a significant amount of probate litigation is the latter exception – that the deceased spouse was required to provide for the divorced spouse, whether through a marital agreement or divorce judgment.  In order for a divorce agreement to leave a bequest in a will be enforceable, the agreement must follow testamentary formalities, and the surviving spouse might have to file a creditor claim against the estate.  

Revocable Trust

Given that a revocable trust is often used as a substitute for a will, one would think that the rules governing wills and trusts would be the same.  Not until 1989 was the rule for divorce for trusts made the same as that for wills.  Section 736.1105, which is part of the Florida Trude Code, sets forth as follows:

Dissolution of marriage; effect on revocable trust.—Unless the trust instrument or the judgment for dissolution of marriage or divorce expressly provides otherwise, if a revocable trust is executed by a husband or wife as settlor prior to annulment of the marriage or entry of a judgment for dissolution of marriage or divorce of the settlor from the settlor’s spouse, any provision of the trust that affects the settlor’s spouse will become void upon annulment of the marriage or entry of the judgment of dissolution of marriage or divorce and any such trust shall be administered and construed as if the settlor’s spouse had died on the date of the annulment or on entry of the judgment for dissolution of marriage or divorce.

Beneficiary, Pay on Death, Transfer on Death Accounts

Most life insurance policies have a beneficiary designation, setting forth who receives the death benefit.  Likewise, most financial institutions will permit the account owner to provide a pay on death or transfer of death designation in the even of death, so that the account can avoid probate.  Until 2012, the rule for nonprobate assets was that the beneficiary designation or pay on death designation controlled who received the account, even if there as a divorce.  In the seminal Florida Supreme Court case Cooper v. Muccitelli, 682 So. 2d 77 (Fla. 1996), the Court held that the account titling controlled who received the life insurance death benefit.

We conclude that the plain language of the above documents controls. To the extent that Karin may have claimed a right to remain primary beneficiary under the Academy policy as a condition of the dissolution of marriage, she waived any such claim when she signed the above agreement. The agreement clearly states: “Each party hereby waives . . . all claims . . . which he or she . . . might have . . . against the other.” Thomas was free to designate whomever he wished as beneficiary. To determine whom Thomas intended as beneficiary, we need look no further than the plain language of the policy itself: The primary beneficiary is Karin Pasquino. After signing the separation agreement, Thomas did just what he needed to do to ensure that the proceeds would go to Karin–he did nothing.

Whether one agrees with the logic and reasoning of the Court, such result was clearly at odds with how Florida was then treating wills and revocable trusts.  Modern estate plans make extensive use of these accounts, so this problem needed to be fixed.   Accordingly, the Florida legislature eventually adopted a statute to reverse this Supreme Court case.  

Section 732.703, entitled “Effect of divorce, dissolution, or invalidity of marriage on disposition of certain assets at death,” provides that former spouses interest in the following types of accounts will be nullified on divorce automatically:

  • life insurance
  • qualified annuity, or other similar tax-deferred contract held within an employee benefit plan
  • employee benefit plan.
  • individual retirement account described in s. 408 or s. 408A of the Internal Revenue Code of 1986
  • payable-on-death account.
  • security or other account registered in a transfer-on-death form.
  • life insurance policy, annuity, or other similar contract that is not held within an employee benefit plan or a tax-qualified retirement account.

 

 

These rules do not apply if the divorce decree or marital agreement provides otherwise.  Also, if the account is governed by ERISA, which is a Federal employee benefit statute, Florida law does not apply.  

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