The Effects of Florida Divorce on Planning Documents

I've previously discussed the effect of marriage on earlier-executed documents, including wills and durable powers of attorney and Designations of Health Care Surrogates.  In this posting, I'll discuss the effect of divorce on earlier-executed documents:1) Durable Powers of Attorney: § 709.2019(2)(b), Florida Statutes, provides that an agent's authority terminates when action is filed for the dissolution or annulment of the agent’s marriage to the principal or for their legal separation, unless the power of attorney otherwise provides.2) Health Care Surrogate Designations: § 765.104(2), Florida Statutes, provides that unless otherwise provided in the advance directive or in an order of dissolution or annulment of marriage, the dissolution or annulment of marriage of the principal revokes the designation of the principal’s former spouse as a surrogate.3) Wills: § 732.507(2), Florida Statutes, provides that any provision of a will executed by a married person that affects the spouse of that person becomes void upon the divorce of that person or upon the dissolution or annulment of the marriage.  Further, 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.4) Revocable Trusts: § 736.1105, Florida Statutes, provides that 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.5) Beneficiary Designations: § 732.703(2), Florida Statutes, provides that, in general, a designation made by or on behalf of the decedent providing for the payment or transfer at death of an interest in an asset to or for the benefit of the decedent’s former spouse is void as of the time the decedent’s marriage was judicially dissolved or declared invalid by court order prior to the decedent’s death, if the designation was made prior to the dissolution or court order.  Further, it provides that the decedent’s interest in the asset shall pass as if the decedent’s former spouse predeceased the decedent.   § 732.703(4) provides situations in which this rule does not apply, including:

i) when controlling federal law provides otherwise (§ 732.703(4)(a));

ii) if the order of dissolution or order declaring the marriage invalid requires that the decedent acquire or maintain the asset for the benefit of a former spouse or children of the marriage, payable upon the death of the decedent either outright or in trust, only if other assets of the decedent fulfilling such a requirement for the benefit of the former spouse or children of the marriage do not exist upon the death of the decedent (§ 732.703(4)(d));

iii) if, under the terms of the order of dissolution or order declaring the marriage invalid, the decedent could not have unilaterally terminated or modified the ownership of the asset, or its disposition upon the death of the decedent (§ 732.703(4)(e)); or

iv) if the designation of the decedent’s former spouse as a beneficiary is irrevocable under applicable law (§ 732.703(4)(f)).

Please contact me at 954-944-3929 or nrumbak@rumbaklaw.com if you want to further discuss these issues.*This document contains legal information, but does not contain legal advice.