ESTATE AND TRUST LAW
Law Update Regarding Dissolution of Marriage
I wanted to update everyone on the new bill that became law on July 1 , 2021 , under Chapter No 2021-183 . The very extensive new bill , CS / CS / SB 1070 — Estates and Trusts , is sponsored by Community Affairs Committee ; Judiciary Committee ; and Senator Lori Berman .
Although the new bill will require a more complete summary , as a practicing Family Law attorney and professor at SCF , I wanted to note that the law changed in reference to divorce judgments . The bill amended probate law to provide that , absent specific intent in the divorce judgment , an ex-spouse is not a beneficiary of the former spouse ’ s will , regardless of when the will was signed . Currently , an ex-spouse remains as a beneficiary after divorce if the will was signed prior to the wedding and the deceased failed to change the will after divorce .
A surprisingly large number of people fail to update their estate plans after getting divorced and learn after the fact the effect of divorce on an estate plan under Florida law .
Florida law has provided that any provision of a will in favor of a divorced spouse is treated as if the surviving former spouse is already dead . Florida statute Section 732.507 ( 2 ) provides : “ Any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage . After the dissolution , divorce , or annulment , the will shall be administered and construed as if the former spouse had died at the time of the dissolution , divorce , or annulment of the marriage , unless the will or the dissolution or divorce judgment expressly provides otherwise .”
As usual , there are exceptions to the rule . One exception to the rule is that unless the will or divorce judgment provides otherwise by specifically providing for the ex-spouse after the divorce .
Another exception , that has caused a lot of litigation , is when the deceased spouse was required to provide for the divorced spouse , whether through a marital agreement or divorce judgment . In order for a divorce agreement to leave a bequest in a will to be enforceable , the agreement must follow testamentary formalities , and the surviving spouse might have to file a creditor claim against the estate .
Current law protects expected heirs from the decedent ’ s oversight of forgetting to change the will by creating the legal fiction that , for purposes of inheritance , revocable trusts , and certain beneficiary designations , a past divorce is treated in the distribution as if the surviving former spouse had died on the date of divorce , as stated above . �
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