Effect of Divorce on Florida Estate Plan

What happens in Florida if someone gets divorced and then dies without updating their estate plan?

Depending on the asset, Florida law provides a set of rules governing the effect of a divorce on that particular asset.

Last Will & Testament

Florida law provides that all provisions in favor of a divorced spouse in a will are to be treated as if the surviving former spouse predeceased (i.e., is already dead) the testator (i.e. the person signing the will). By way of example, if Mark dies following his divorce from Wendy, any provision in Mark’s will naming Wendy may be treated as if Wendy died before Mark died.  Fla. Stat. § 732.507(2) states:

Effect of subsequent marriage, birth, adoption, or dissolution of marriage.  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.

Note the two exceptions included in the rule: (1) if the will, or (2) divorce judgment, provide otherwise.

You must amend your documents if, after divorce where the will or divorce judgment are silent as to provisions in favor of an ex-spouse, you still wish to leave something to your ex-spouse.

Revocable Trust

Generally, a revocable trust is a trust that, depending on the terms, may be able to be altered or cancelled. The Florida Trust Code was amended in 1989 to mirror the above will rule for the effect of divorce on a revocable trust. The current iteration of that statute, Section 736.1105, Florida Statutes, states 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 judgement 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.

Revocable trusts likewise may treat the ex-spouse as having predeceased the settlor (creator of the trust) absent a provision in the revocable trust or divorce judgment to the contrary.

Certain Assets with Beneficiary Designations

Pay-on-death (POD) accounts, transfer-on-death (TOD) accounts, life insurance policies, brokerage accounts, bank accounts, and other assets that have beneficiary designations—setting forth who receives the death benefit after the owner’s death—are an extensive part of modern estate plans. It was only recently, in 2012, that Florida law was amended to nullify beneficiary designations in favor of former spouses effective as of the date of the divorce.

Fla. Stat. § 732.703, enumerates the following types of assets or accounts where an ex-spouse’s interest is nullified automatically following divorce:

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

Prior to 2012, Florida law provided that ex-spouses were not automatically divested of their expectancy of the proceeds of a life insurance policy following divorce. See, e.g., Davis v. Davis, 301 So. 2d 154 (Fla. 3d DCA 1974); Cooper v. Muccitelli, 682 So. 2d 77 (Fla. 1996).  Cooper held—contrary to Florida law regarding wills and revocable trusts—that a former wife of an insured decedent remained the primary beneficiary on the decedent’s life insurance policy even though the parties divorced. Cooper, 682 So. 2d at 79.

As explained above, the Florida legislature has added Section 732.703 to the Florida Probate Code to abrogate the Florida Supreme Court’s decision in Cooper.  Florida law is now consistent in the effect of divorce is handled between wills, revocable trusts, and the assets enumerated above with beneficiary designations.

Please note, however, that these Florida rules governing the effect of divorce do not apply if the asset in question is governed under ERISA (Employee Retirement Income Security Act) which is governed under federal—not state—law. ERISA is a federal employee benefit statute; accordingly, Florida law does not apply.

Brian Spiro is a Florida probate litigator. For a free consultation about your case, please call (561) 626-2101 or toll free (800) 226-1484.