I have had a few situations – not many – where married clients of mine divorce. What happens in that event to the estate planning documents that the couple signed while they were not so unhappily married? To state the question with a sharper point, what happens if death occurs after the divorce but before the deceased former spouse effectively adopts a new estate plan that takes the surviving former spouse out of that plan?
Generally speaking, when a former spouse dies survived by the other, Florida law treats the surviving former spouse as if that survivor had died before the decedent died. The law “voids” bequests or benefits directed to the surviving former spouse where ever they appear in the old estate planning documents. (Be careful, however, about the word “generally” whenever I use it in these posts. “Generally” cannot be relied upon in the individual case.)
Last year the Florida Bar Journal published Estate Planning: Death Soon After Divorce by Peter T. Kirkwood and Allison L. Kirkwood. The authors describe their article as one that “provides an overview of Florida law on the effect of divorce on estate planning.” They identify what they call a “patchwork” of Florida statutes that “automatically” protects the deceased spouse’s estate from a surviving, former spouse who would seek benefits that the decedent had provided in documents signed before the divorce.
The article is careful to note that in some cases Federal law, not Florida law, controls a given estate planning document. (As thorough as the article is, it does not mention the circumstance that I describe in an earlier post involving certain life insurance death benefits for an employee of the Federal government.) The authors also caution that the patchwork does not apply to irrevocable trusts. Relying on the Florida patchwork is a serious mistake for the newly-divorced.
Even if the patchwork voids provisions that would benefit the surviving former spouse, it does nothing to address the the benefits to others whose relationship to the decedent depended on the deceased spouse’s relationship with the former spouse. (One common example are bequests to the children of the former spouse’s first marriage.) Taking out the central figure in the estate plan, just as taking that person out of one’s life, obviously changes everything. Do not rely on the patchwork.