Does a Divorce Decree Override a Will in Florida?

Creating a will

Effect of Divorce on Estate Planning in Florida

In Florida, a will can supersede a divorce decree if the will clearly shows an intention to do so. It is common for spouses to leave their estates to each other in their wills. Not every couple that goes through a divorce is prompt in updating their estate planning documents. To address that problem, the Florida legislature has adopted several laws that essentially call for an override of the will if a deceased former spouse’s will names his or her ex, but the will or the divorce decree does not mention the divorce.

Florida Laws Affecting Inheritance After Divorce

According to Florida Statute §732.507(2), any provision in a will that a married person executed that affects their spouse becomes void upon divorce, dissolution, or annulment unless the will or the divorce decree or judgment explicitly says that the inheritance remains in effect. Other estate planning tools are also affected by state statutes. Under Florida Statute §736.1105, if a spouse executes a revocable trust before a divorce or annulment and it benefits the other spouse, that provision in the trust will become void upon divorce unless the court’s judgment or the trust instrument clearly states otherwise.

Not all assets pass through a will; non-probate assets like bank accounts and life insurance proceeds are often designated “transfer-on-death” and do not fall under the scope of those two statutes. However, Florida Statute §732.703 achieves a similar effect. A transfer-on-death asset to a former spouse is effectively voided by treating the former spouse as if he or she died before the deceased spouse.

Special Circumstances Affecting Inheritance After Divorce

Even if assets are affected by one of these statutes, there may be circumstances that prevent them from applying. For instance, at least one appellate court has found that a divorce did not invalidate provisions of a will that named the former spouse as a beneficiary because the former couple was not married at the time that the will was executed.

Sometimes federal law overrides the state laws that invalidate will provisions. Other times, a spouse may be ordered by a court to maintain certain benefits, like life insurance, for the benefit of the former spouse.

No two cases are exactly the same, so it is a good idea to talk with a Stuart divorce lawyer to discuss how your family’s circumstances may impact the interpretation and application of your or a former spouse’s estate planning documents.

The Law Offices of Travis R. Walker is Here to Help

At the Law Offices of Travis R. Walker, we assist clients through many life transitions. When two major transitions like divorce and death intersect, it compounds the questions that people have. Our team assists individuals and families going through divorce as well as tackling estate planning so we are equipped to offer counsel and advocacy when an estate plan is affected by divorce. Call our Treasure Coast office today to schedule a confidential consultation.

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