The Divorce Was Bad Enough. But What Happens if You Die Without Changing Your Will?

  1. Estate Planning
  2. The Divorce Was Bad Enough. But What Happens if You Die Without Changing Your Will?

Going through a divorce can be an overwhelmingly devastating experience. And the last thing you need after a divorce is to make your financial affairs more complicated or worse off by making mistakes with your estate plan.

That is why, once your divorce is final it is vital that you seek the advice of a competent and experienced trust and estates attorney. A probate and estate planning attorney can help you update and revise the estate plan that you had with your ex, or get one in place if you didn’t have one.

Like divorce law, probate and estate law is governed by state statute and things can get complicated very quickly. So you will want to have the guidance and advice that only experienced counsel can give you to make the process simple and easy.

When Do You Need to Change Your Will?

It’s always a good idea to consult with counsel before something becomes a crisis. So, talking to your estate planning attorney at the beginning of your divorce proceedings is a good idea. That way your estate lawyer can get a better understanding of your individual situation and can advise you accordingly.

However, there is a little leeway here. Since most married couples have property (e.g. joint assets, retirement accounts, and life insurance policies) that are non-probate assets. That is to say, these kinds of assets generally require you to name a beneficiary who will receive the property when you die. Such assets are considered non-probate assets because they are transferred automatically —outside of the terms of a will or trust.

Another reason why it’s not quite so critical is because in Florida, where we practice, beneficiary designations in favor of the former spouse are automatically revoked upon divorce. One caveat however: this only applies to (beneficiary designations made on or after July 1, 2012. So if you named your now former spouse as a beneficiary on any document before July 1, 2012, that designation will not be revoked.

But what about property that does not pass automatically? What if your divorce is final and you forgot to change your will and you die. Will your ex take all?

Florida’s Automatic Revocation Law.

While as we said above, you should speak with your trusts and estates attorney long before your divorce is final, all is not lost if your divorce decree is finalized and then you seek counsel.

That’s because briefly, Florida’s laws provide that a will executed by a married person that affects the spouse is void upon divorce. Any such will is administered and construed by the court as if the former spouse had died at the time of the divorce. Trusts are treated in the same way.

Florida law, then, generally protects a divorced decedent from the unintended consequences of having a former spouse inherit from him or her.

But that doesn’t mean that you shouldn’t change your estate planning documents after your divorce — you should! Whenever there is a major change in your life — a birth, an adoption, a divorce, a marriage—you should sit down (at a socially safe distance) with your estate and probate attorney to review your estate plan.

 Protecting Your Family is Just a Phone Call Away.

Don’t leave planning for your future and that of your loved ones to chance. All it takes is one phone call to the Law Offices of Samantha J. Fitzgerald to ensure that your wishes will be followed and your loved ones taken care of when you are gone. We expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well.  When you work with the estate planning attorneys at the Law Offices of Samantha J. Fitzgerald, you get more than just an estate plan: you get peace of mind. Call us at 954-580-3690 or email us at: [email protected] toda

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