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4 Key Reasons to Update Your Estate Planning Documents During or After a Divorce


Commonly in estate plans for married couples, the spouse is named as a beneficiary and as a decision-maker in the event of disability.  The spouse is named to make healthcare, legal, and financial decisions as well as control the assets of any minor or special needs children.

However, when a married couple files for divorce or dissolution of marriage, it is imperative to update your estate planning documents either during or immediately after a divorce. In fact, some choose to review their estate plans before filing for a divorce so they can review the current lay of the land.

There are four main reasons why you should update your estate plans when planning for your divorce.  Before you start making changes to your estate plans, it is wise to consult with an estate planning attorney and be aware of your options.

Your Ex-Spouse May Receive More Assets Than Necessary

Regardless of whether the married couple had established their estate plans, the court will review the division of separate and marital property under Florida’s family law. However, if you are getting divorced, you may want to prevent your spouse from receiving more of your assets than necessary.

If your future ex-spouse is listed as a beneficiary, you may want to update your accounts as soon as possible. Otherwise, your soon-to-be ex-spouse could inherit your assets if you die before the divorce is final.

Limited Authority Over Who Receives Your Assets

In Florida, if your ex-spouse is listed as a beneficiary under your Will, then Florida law will automatically remove them as a beneficiary and treat them as having predeceased you.   Although your ex-spouse will not receive assets as had been stated in the Will, the court may treat your case as if there is no Will if it was not validly executed.  If you do not update your estate plans to remove your former spouse, then you may not have control over who receives your assets following your death.

You Need an Alternative Surrogate for Healthcare Directives

In most cases, married couples list their spouse as their healthcare surrogate and grant them decision-making authority in the event of the grantor’s incapacity.  While Florida law would prevent your ex-spouse from making healthcare decisions in the event of your disability or incapacity, you will still need to choose an alternative surrogate for healthcare decision-making.

Your Ex-Spouse May Gain Control Over the Assets Inherited by Children

If you have minor children and then you die, your surviving ex-spouse (who is also the parent of your minor children) will most likely be named the guardian. While you may not be able to prevent your ex-spouse from becoming the guardian – unless the court deems the parent unfit as guardian – you can keep the former spouse from gaining control of assets that you leave for your children.

Unless you updated your estate planning documents to say otherwise, the surviving parent will control the inherited assets as the guardian of your children regardless of whether you were still married or not.  You can avoid this by creating a trust that would appoint another individual – for example, a relative or friend of your choice – to control your children’s assets for their benefit until they reach a more mature age.

A St. Petersburg estate planning attorney who is familiar with the nuances of estate planning following or during a divorce can help you. Contact Legacy Protection Lawyers, LLP, at 727-471-5868 for a free consultation.


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