Urgent Estate Planning Considerations When a Divorce is Pending

If you are a married individual who is considering a separation or divorce you should review your estate plan as soon as possible to determine if it remains appropriate under your change of circumstances. Remember, under the law, you are considered to be legally married until the judge signs the final dissolution order ending the marriage. In the event you were to die or become disabled prior to the legal termination of your marriage, your estranged spouse may have legal control over you and your estate. It is also possible that your spouse may be entitled to most, if not all, of your estate!

If you do not have a Last Will and Testament most likely your spouse, under the intestacy laws of Florida, will be entitled to the control of your estate and entitled to your estate assets in the event of your death. You should consider executing a Last Will and Testament which clearly appoints those individuals, other than your estranged spouse, who you want to have control over your Estate and to inherit your Estate assets. If you do have a Last Will and Testament or a similar estate planning document, such as a Revocable Living Trust, your spouse will typically be designated as the Personal Representative of your Estate and/or the Trustee of your Revocable Living Trust, and probably is named as the primary or sole beneficiary of your estate. You should evaluate the necessity of executing a codicil to your Last Will and Testament and/or an amendment to your Revocable Living Trust which will change these designations. It is important to remember that until the divorce is finalized, you may not be able to disinherit completely your estranged spouse. Thus, the timing of your divorce may greatly affect your estate planning goals.

Also, do not forget about your life insurance policies, annuities, health or medical savings accounts, and payable on death accounts. These assets are usually referred to as “non probate assets,” meaning that they will pass outside of probate and, therefore, outside of the terms of your Last Will or Revocable Living Trust. Most likely, you have designated your spouse as the beneficiary. Therefore, even if you take the time to change your Last Will or amend your Revocable Living Trust, these documents will have no affect on your non probate assets. Instead, you will need to obtain a change of beneficiary form for each of your non probate assets and update your beneficiary designations accordingly. This is particularly important after the divorce has been finalized.

In the event you become disabled while your divorce is pending, such as through an automobile accident, heart attack or stroke, such that you are no longer capable of handling your affairs, a guardian normally must be appointed for you. Under Florida law, the spouse of the incapacitated individual generally has priority of appointment as guardian. This is why it is important to execute a Durable Power of Attorney appointing an individual to handle your financial affairs, a Living Will, and a Designation of Health Care Surrogate (also known as a Health Care Power of Attorney) appointing an individual to handle your medical affairs and abide by the directions in your Living Will.

If you have previously done an estate plan, prior to your separation or initiation of a divorce proceeding, you have probably given your now estranged spouse authority under a Durable Power of Attorney (for financial matters), Living Will and a Designation of Health Care (for health related decisions, including the decision to end life prolonging procedures in the event of a terminal illness, end-stage medical condition or persistent vegetative state). If this is indeed the case, it is important to execute a new Designation of Power of Attorney, a Designation of Health Care and a Living Will.

Your future estate is in YOUR control. At least it should be. Remember, through properly drafted estate planning documents, you can provide that someone other than your estranged spouse will have control over you (in the event of your incapacity) or your estate (in the event of your death). Please speak with your divorce attorney and your estate planning attorney to protect yourself and your estate.

This article is by Jay Feldman, Esquire with assistance from Scott J. Brook, Esquire. Jay Feldman is Of Counsel and practices primarily in the area of Estate Planning. Scott J. Brook, P.A. also does wills, trusts and focuses its tri-county practice on family law matters and workers’ compensation issues.