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How Does a Divorce Affect Florida Estate Planning?

With the divorce rate of marriages in the United States reaching around 50%, divorce may often be an important part of estate planning.

One consideration in how a divorce could affect your estate plan is whether you created and entered into a prenuptial or a postnuptial agreement. These agreements are used to settle numerous types of issues in the event of death or divorce, including the division of your non-marital property, joint property, and debts. A “prenuptial” agreement is signed before you are married. In contrast, a “Postnuptial” agreement is signed after you are married.

If you have a prenuptial agreement or a postnuptial agreement, your estate plan must be consistent with that agreement. Your estate plan may go beyond what is required in the agreement, but the estate plan will not be enforceable to the extent that it conflicts with the existing agreement. If your Last Will and Testament or other estate planning documents conflict with the terms of your valid prenuptial agreement or postnuptial agreement, a court may set aside the inconsistent terms in the Last Will and Testament or Trust.  It is extremely important that you consult with an experienced and knowledgeable Florida Estate Planning attorney to ensure that your Will or Trust does not conflict with the terms of any existing agreement.

In the context of divorce and estate planning, one rule to consider is Florida Statute Section 732.507(2). This statute provides that, upon a couple’s divorce, the former husband and the former wife will each be deemed to have predeceased the other at the time of their divorce for purposes of administering their Wills.

For example, John and Jane have separate Wills prepared that leave their estates to each other. Later, John and Jane are divorced. According to Florida Statute 732.507(2), for estate administration purposes, John and Jane would be deemed to have predeceased each other at the time of the divorce judgment.  If John later died without changing his Will, Jane would still not inherit anything from John’s estate under that particular Florida Statute.

Typically when divorcing, you would want a result consistent with the aforementioned Florida Statute. However, it is possible to alter the result under the statute, by providing in your Will or Trust that your former spouse would inherit your estate even if you subsequently divorce.

Having considered the application of any prenuptial or postnuptial agreements, as well as applicable Florida law, you definitely should consult with an experienced and knowledgeable Florida Estate Planning attorney to discuss your estate plan, and whether you want to address the possibility of or an actual divorce in your estate planning.

These concerns and other related concerns may all be addressed through proper estate planning. Please note, that there are numerous other related issues not discussed herein that may impact your estate planning goals. For example, how a Will or Trust is impacted by a later subsequent marriage, or how children from a previous marriage can impact your estate plan regarding your current spouse. 

These issues can be complex. To discuss this matter, or, Guardianship, and Estate Administration matters please contact Ann Marie Gilden, Esquire of Ann Marie Giordano Gilden, P.A. at (407) 732-7620, and visit my website at www.AnnMarieGildenLaw.com.

This information is provided only as educational materials, and does not constitute the providing of legal advice, and does not create an attorney-client relationship.