After a Divorce, Should You Just Tear Up Your Will or Execute a New One?
By: Barry E. Haimo, Esq.
December 10, 2020
While experts continue to disagree on how to pin down the actual divorce rate in this country, one thing is for sure: divorce does happen.
For married couples who do choose to part ways, depending on how long you’ve been together and how much estate planning you’ve done, things can get complicated when divorce rears its ugly head.
If you are in this situation, you may be asking yourself, Should I tear up that will? Should I write a new one and leave my ex out of it? How does that work if our kids are still minors? All valid — and important — questions.
But they all really boil down to one: what needs to be done with an estate plan when a marriage ends in divorce? In Florida, a lot actually. Let’s take a look at how to get started…
Florida Renders Willed Provisions for Ex-Spouses Void
Florida statute says that any provisions in a married person’s will that affect their spouse become void upon divorce, dissolution, or annulment of the marriage. The courts will administer the will in the same way they would if the ex-spouse had died unless “expressly provide[d] otherwise.”
The legislation was meant to prevent any unintended transfer of assets to an ex in the event of death, as well as when no updates were made to the estate planning documents post-divorce.
While this seems straightforward enough, leaving the will as-is could actually lead to unnecessary complications — especially when your former spouse is the only person otherwise named in the will.
Furthermore, a divorce action can nullify or otherwise affect all sorts of other estate planning documents as well. Below are the most important estate planning changes that should happen post-divorce.
Execute an Entirely New Will
Execute a new will, and be sure to remove (or rename) your ex as a beneficiary where necessary. Yes, you read that right — even following the most amicable split, you still need a new will.
Even if you wish to give your former spouse everything you did pre-divorce, it must be documented in a new will dated after the divorce is finalized. Otherwise, Florida law will not recognize it.
Update Your Powers of Attorney
Both your financial and medical powers of attorney should be updated if they name your former spouse. These two documents are arguably the most important estate planning tools you have preceding death.
Deciding who you trust enough to handle major financial and healthcare decisions when you are unable to could take some time and thought. So don’t wait.
Check All Other Beneficiary Designations
Bank accounts, insurance policies, retirement funds — every financial account you own likely required a beneficiary to be named upon opening it.
It is probable that the accounts opened after your nuptials list your ex as such. Language within individual contracts may contain the removal of an ex-spouse automatically, but it’s not something you’ll want to leave to chance.
Find a New Estate Planning Attorney
While in some scenarios there could be advantages to maintaining the same estate planning team on the newly separated estates, in others, a clean break is best.
If you left most of the estate planning decisions to your ex-spouse, for instance, or simply desire a new level of confidentiality in your affairs, finding a new estate planning firm could be a wise choice. Starting fresh is never a bad option after divorce.
Simply carry a copy of your dissolution decree during your first meeting and you can begin developing your own set of goals in building your new, personal legacy.
Ultimately, any divorce can lead you down a path of unexpected and undesired estate planning twists and turns, but with fresh eyes and a little foresight, you should be well on your way to making the most of this new chapter.
Barry E. Haimo, Esq.
Strategic Planning With Purpose®
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