By Jennifer L. Fulton, Esquire<\/p>\n
If you are going through a divorce, consider your estate plan. Most people want someone other than the spouse they are divorcing to make their health care decisions for them.\u00a0 You may also want to change the fiduciaries named in your documents and change the beneficiaries. The rules are different if your divorce is still pending versus if you have a final judgment.\u00a0 Here\u2019s how your estate planning documents naming your spouse are treated in Florida during and after a divorce:<\/p>\n
A Designation of Health Care Surrogate<\/u><\/strong> names another person (or persons) who can make health care decisions for you if you are not capable of doing so.\u00a0 These decisions include the end-of-life decisions you would state in your Living Will<\/u><\/strong>. In Florida, during the divorce, there is NO statutory provision to remove your spouse, but there is upon final judgment.<\/p>\n If you have a HIPAA authorization and waiver<\/u><\/strong> naming your spouse, you could create a new one that did not include your spouse.\u00a0 It allows the people named therein to ask questions of the medical staff at your hospital and receive answers.<\/p>\n A Durable General Power of Attorney <\/u><\/strong>will allow your named agent to act on your behalf to transact the business of your life.\u00a0 This document is valid immediately in Florida. Upon the filing of an action for dissolution in Florida, the spouse is statutorily removed as your agent.<\/p>\n A Declaration of Pre-Need Guardian<\/u><\/strong> allows you to pick, while you are competent, the person you would want the court to use as your guardian if a guardianship was ever needed.\u00a0 Preference is given to someone related by blood or marriage, and an ex-spouse could petition for the job. Filing a declaration of pre-need guardian when you separate lets the judge know your preference while you still have capacity.<\/p>\n Your Last Will and Testament<\/u><\/strong> may need some changes. Most people want to change their named personal representative when a divorce is filed. \u00a0In addition, you can change your asset distribution.\u00a0 However, unless there is a valid nuptial agreement stating otherwise, a spouse is entitled to elect against the will, even after filing for divorce, to take a total of 30% of the \u201caugmented\u201d estate, which is most of your assets.\u00a0 After the divorce is final, an ex-spouse does not benefit from the will.<\/p>\n If you are divorcing without a will, and die before the divorce is final, the spouse will receive 100% of your probate assets, unless you have a minor child, and then the spouse will receive half.<\/p>\n A Revocable Living Trust<\/u><\/strong> is treated much like a will.\u00a0 If you are the grantor, you will want to remove your spouse as successor trustee, and change the dispositive provisions that would typically give 100% to the spouse upon your death. \u00a0\u00a0As with the will, the spouse could still claim an elective share, of 30% of the augmented estate.<\/p>\n If your divorce is pending, you should change the beneficiary designations and PODs<\/u><\/strong> on your accounts.\u00a0 Post-divorce, most beneficiary designations are covered by a Florida statute removing the ex-spouse.\u00a0 An exception is ERISA-qualified employee benefit plans<\/u><\/strong>, such as 401(k) plans.\u00a0 If your employer\u2019s retirement plan is ERISA-qualified, and the spouse is the beneficiary, upon dissolution, you must sign a new beneficiary designation; the ex-spouse will NOT be automatically removed as beneficiary.<\/p>\n After divorce, joint accounts with survivorship features<\/u><\/strong> that are awarded to a spouse in the divorce, but not retitled prior to the death of the account owner, maintain their survivorship features<\/em>.\u00a0 Check with your family law attorney before retitling these if the divorce is not final, they are probably marital assets.<\/p>\n Irrevocable Trusts<\/u><\/strong>.\u00a0 As their name implies, an irrevocable trust cannot be changed after it is in place. The most common irrevocable trusts are Irrevocable Life Insurance Trusts, or ILITs.\u00a0 Sometimes this problem can be solved after divorce (provided it is not in opposition to the final judgment) by allowing the policy to lapse.\u00a0 However, this is not always a perfect solution, as it may no longer be possible for the insured to obtain a new policy under similar terms.\u00a0 Sometimes an irrevocable trust can be changed, if a material purpose of the trust no longer exists.<\/p>\n If you are getting or have just gotten a divorce, your estate plan is<\/em> outdated and should be reviewed. Bresky Law remain open even during the coronavirus pandemic, to provide these essential services, and can help you with your estate planning needs while practicing safe social distancing.\u00a0 Consultations can be done remotely, and, as of this writing, appointments for signing and witnessing the documents can be done through the window of your car.\u00a0 Updating your estate plan during a divorce protects you and your family, and should not be overlooked.<\/p>\n <\/p>\n Jennifer L. Fulton, Esq. is an attorney, of counsel, at The Law Offices of Robin <\/em>Bresky (www.breskylegal.com<\/u>)\u00a0focusing\u00a0on\u00a0Estate Planning, Probate, and Estate and Trust Administration. A\u00a0member of the Florida Bar since 1996 with a\u00a0Juris Doctor degree\u00a0from Nova Southeastern University,\u00a0Fulton works with clients to plan for the milestones of life (college, \u201cadulting\u201d, marriage, children, grandchildren, aging parents, pre- and post-divorce,\u00a0loss of a spouse, aging, diminished mental\u00a0capacity)\u00a0and administration upon death. She can be reached at 561-994-6273 or\u00a0EstatePlanning@BreskyLegal.com.<\/u><\/em>\u00a0 <\/em>If you have an estate planning topic you would like to hear more about, please drop her a line, and perhaps it will spark a future article! <\/em><\/p>\n This information is provided for general educational purposes and may not apply to your specific situation.\u00a0 Please consult with an attorney before relying on this information.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" By Jennifer L. Fulton, Esquire If you are going through a divorce, consider your estate plan. Most people want someone other than the spouse they are divorcing to make their health care decisions for them.\u00a0 You may also want to change the fiduciaries named in your documents and change the beneficiaries. The rules are different…<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1836,1806,1813],"tags":[],"class_list":["post-1923","post","type-post","status-publish","format-standard","hentry","category-estate-planning","category-family","category-probate"],"acf":[],"_links":{"self":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts\/1923","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/comments?post=1923"}],"version-history":[{"count":0,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts\/1923\/revisions"}],"wp:attachment":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/media?parent=1923"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/categories?post=1923"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/tags?post=1923"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}