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Do I Need To Revise My Estate Plan After A Divorce?


As a rule of thumb, you should review your estate plans after a major life event.  A dissolution of marriage is a major life event that should prompt you to review your estate planning documents to confirm it still accurately reflects your wishes.

However, not updating your estate plan after a divorce could complicate things in the event of your death or incapacity.  Your former spouse could potentially stake a claim against your estate simply because you forgot to remove him or her from your estate planning documents.  Fortunately, Section 733.703, Florida Statutes, does state that the designation of a former spouse on certain assets and estate planning documents is void.  However, depending on whether or not you want your former spouse to inherit from your estate, it is important to review all of these potential issues with your attorney.

Review your Will or Trust after a divorce

After a final judgment for dissolution of marriage is entered, you should contact your attorney to review your estate planning documents.  It is likely that you will want to revoke your previous Will or Trust, but that may not be the case.  Your attorney should be able to provide guidance as to which provisions are enforceable by your former spouse and which are not.

In reviewing your estate plans, you need to consider the following:

  1. Who will be the beneficiaries under your Will or Trust;
  2. Who will be appointed as guardian to care for your minor children; and
  3. Who will be named as your Personal Representative or Trustee.

Update Your Beneficiaries

While your Trust controls trust assets and your Last Will and Testament controls probate assets, it is important to remember that you may have assets with designated beneficiaries listed on it (these assets may pass outside of your Trust or Will).  After a divorce, you may want to remove your former spouse as the beneficiary of your accounts, commonly including the following types of accounts:

  • IRA and retirement accounts
  • Health savings accounts
  • Insurance policies
  • Pay-on-death (POD) bank accounts

In order to update your beneficiaries on these accounts, you need to request forms from your employer, insurance company, or bank that opened the account for you.

Note: When you are married, some retirement accounts and plans may require spousal consent when attempting to change beneficiaries.

Update a Power of Attorney and other Advance Directives

A divorce does not automatically invalidate your Advance Directives, including your Power of Attorney or healthcare surrogate designation, which means you will need to update these documents, too. When you designate a person (e.g., your spouse) to act as a Power of Attorney, you appoint that person to act on your behalf in the event of your incapacitation.

Most Advance Directives can be revoked by creating a new one; however, in some instances, you may need to specifically revoke the document where you designated your former spouse to make decisions on your behalf.  The fact that you are now divorced does not automatically remove your former spouse from these types of documents.

If you have finalized your divorce or are currently going through one, it is essential to consult with an attorney to help you update your estate plan properly. Speak with our St. Petersburg estate planning attorneys at Legacy Protection Lawyers, LLP, to discuss your particular situation. Call 727-471-5868 for a consultation.

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