A topic that oftentime gets addressed during a divorce is the division of marital assets. But seldom do divorced individuals think about how their divorce plays a role in their post-death planning. It’s critical that you update your estate plan after a divorce or while going through a divorce. If you don’t, your ex-spouse could still be included in your estate plan, potentially leaving him or her with rights to inherit your estate and even having authority over your financial decisions.
As Florida Estate Planning lawyers, we advise you to change the following areas of your estate plan after a divorce:
- Update your Will
- Update your Healthcare Directives and Proxy
- Name new beneficiaries
- Name new Powers of Attorney
- Consider Setting Up a Trust
- Review the guardianship for any minor children
- Review your prenuptial agreement or postnuptial agreement
- Review Life Insurance Policies
In this blog, we’ll explain to you the importance of each step of estate planning after a divorce and tell you how it’s done.
1. Update Your Will
Do you have a will that includes provisions for your ex-spouse? If so, it’s imperative that you now take the time to revoke that will and draft a new one.
You’ll likely need to remove details about your ex-spouse receiving assets, funds and other items. If you’re a co-parent with your ex-spouse, you might want to still include them, but also have provisions in your will that protects your child and maximizes their access to their inheritance.
If you have children, now is the time to review their guardianship with your ex-spouse(which we get into more below).
At the very least, it’s wise to review the will now and see if any areas may be affected by the divorce.
2. Update Your Healthcare Directives and Proxy
You may have also appointed your ex-spouse as a Healthcare Proxy before your divorce. This role allows them to make healthcare decisions if you no longer can do so yourself. If you’re divorced, it’s likely you don’t want your ex-spouse to be responsible for this anymore. Or, your ex-spouse may not be willing to commit to that role anymore.
Review the document and update the proxy with a new responsible individual. Make sure you have a conversation with them first so they understand what to expect of the role.
3. Name New Beneficiaries
Your will and any trusts you’ve created may need to have their beneficiaries amended. This is also true for assets such as life insurance policies, retirement accounts (IRAs and 401ks) and Transfer on Death accounts.
However, make sure that this is both legally allowed and has been discussed with the beneficiary. You don’t want your estate to end up in litigation. Therefore, it’s wisest to consult a Florida estate planning lawyer during this step.
4. Name a New Power of Attorney
When estate planning after a divorce, you should also consider naming a new power of attorney. A power of attorney is the person you select to make financial and legal decisions on your behalf, if you become incapacitated.
After a divorce, many people would prefer to remove their ex-spouse from this role. To do this, you will need to select a new trusted and responsible individual. You should also notify your ex-spouse to avoid confusion later.
5. Consider Creating a Trust
After a divorce, a wise estate planning step is to set up a trust. This can be useful to handle alimony and child support to your ex-spouse and any shared children.
Trusts can also allow you to grant money to your children, without giving it directly to your ex-spouse. For example, if you have minor children that you’d like to support financially in the future even after your death, then you can create a revocable trust with conditions that ensure only your child receives the money.
6. Review the Guardianship for Any Minor Children
If you have shared children with your ex-spouse, then you may want to review the pre-need guardianship designations for minor children in the case that you pass away while they are minors. This is especially true if your ex-spouse has addiction or substance abuse problems.
We advise you to put any concerns you have about their ability to be a parent into writing and keep this document with your estate plans.
7. Review Your Prenuptial Agreement or Postnuptial Agreement
If you’re about to get divorced or have a pre or post-nuptial agreement, then now is the time to review that document and see if it’s what you want.
The last thing you want is to forget something in those documents that see you lose out significantly.
8. Review Life Insurance Policies
After a divorce, another estate planning step to not forget is reviewing your life insurance policies.
These documents will review how policies are paid out after your death. In most cases, you won’t need to do anything but it’s worth reviewing it to confirm that your ex-spouse isn’t getting access to anything you wouldn’t expect or want.
Are Assets Safe From Divorce in Florida?
In Florida, non-marital property is not subject to division by the court.
Whoever owns the non-marital asset, keeps that asset. This can include:
- Assets owned by either spouse before the marriage.
- Assets acquired via inheritance or non-spouse gifting.
- Income from non-marital assets.
- Assets listed in a prenuptial or postnuptial agreement.
Marital property can be divided by the courts, including:
- Assets acquired during the marriage.
- Enhancement in Value or Appreciation of Non-Marital Assets.
- Interspousal gifts.
Contact an Estate Planning Attorney Today in Riverview and St. Petersburg
If you are going through a divorce and need assistance with the estate planning aspects, then our Florida estate planning lawyers can help. We can review and update documents, ensuring you comply with Florida law and benefit as best possible.
We welcome you to contact our Florida estate planning attorneys today for a free assessment if you have any questions or wish to get started.
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Battaglia, Ross, Dicus & McQuaid, P.A. is U.S. News and World Reports Tier 1 law firm in Florida, specializing in Estate Planning & Probate since 1958. With award-winning experienced estate planning attorneys, they can help you create a water-tight estate plan that protects your rights and wishes.
