Law Article: ESTATE PLANNING DURING DIVORCE

by Fred Hochsztein, Esq. and Emily Harrison-Jolly, Esq.

Under Florida law, until the judge signs the Final Judgment dissolving the marriage, each spouse continues to have the same marital rights and privileges as they have always had, even after a divorce action has been initiated in the court. Filing for divorce does not in itself terminate marital status. Only the final judgment of divorce has that effect.

As it relates to estate planning, you should be aware of that in the event of your death before the divorce has been finalized, the following will apply:

1. Real estate and bank or brokerage accounts in joint names will go to the surviving spouse.
    

2. Even if your homestead property is in your name alone, your spouse will have a life estate, which means your spouse will be entitled to live there for the rest of his or her life.
    

3. Your spouse will be entitled to the greater amount of these two: Either the amount that you left your spouse in a will or trust or a 30% elective share in your property.
    

4. If you have named your spouse as the personal representative of your will or as the trustee of your trust, your spouse will be entitled to serve in that role.
    

5. If you do not have a will, your spouse will be entitled to at least a 50% intestate share if you have children and 100% if you do not have children.
    

6. Your spouse will be entitled by statute to a family allowance for support, and certain personal property.
    

7. If you have designated your spouse as a beneficiary on your life insurance, annuities or bank accounts, those designations will still be effective.
    

8. If you have designated your spouse as your decision maker under a living will, designation of health care surrogate or durable power of attorney, those designations will still be in effect. If you don’t have a living will or designation of health care surrogate, your spouse will have first priority to make decisions unless a guardian is been appointed by the Court.
    

9. Your spouse will have rights in your pension plan.
    

10. Provisions in prenuptial and post nuptial agreements regarding inheritance rights will still apply.
     

11. Your spouse will be able to enter your safe deposit box if he or she has been designated as authorized to do so.
     

12. Both spouses will continue as the natural guardians of minor children.

While the law will not allow you to change some of these rights and privileges, there are certain things that you should do:

• Sign a new will removing your spouse as beneficiary and personal representative.
   

• Amend your trust to remove your spouse as beneficiary and trustee.
   

• Sign a new designation of health care surrogate, living will and durable power of attorney designating someone other than your spouse as your decision maker.
   

• Sign change of beneficiary forms and submit them to life insurance and annuity companies and banks.
   

• Change the title to bank and brokerage accounts to remove your spouse as your beneficiary.
   

• Eliminate your spouse’s authority to enter your safe deposit box.
   

• Advise your employer that your spouse should not have access to information.
   

• Sign a designation naming a guardian for your minor children if both you and your spouse should die.
   

Our experienced with Florida Estate Law as it relates to divorce law enables us to provide comprehensive legal services to clients throughout Florida. If you have a question about or related legal matter concerning estate planning and Florida divorce law, contact the law office of Hochsztein & Harrison-Jolly, P.A. for immediate legal assistance.  Contact the Law Offices of Hochsztein & Harrison-Jolly, P.A. in Hollywood, Florida