In Florida, the entry of the Final Judgment of Divorce prevents your estranged spouse from inheriting any assets from your estate – not the filing of a petition for dissolution of marriage. If you do not have a Will, your estranged spouse will inherit from your estate in the event that you pass away while your divorce proceedings are pending. In order to prevent this from happening, it is important to draft an estate plan that disinherits your spouse at the same time that you file your Petition for Dissolution of Marriage.
It is important to note that even if you draft a Will that disinherits your soon-to-be ex-spouse, he or she would still be entitled to inherit his or her elective share of your probate estate (which amounts to 30%) while your divorce proceedings are pending. Your probate estate does not include assets such as life insurance policies, retirement accounts or similar assets which allow you to select a beneficiary when you set up the policy and/or account. If you have designated your spouse as a beneficiary on any of these non-probate assets make sure you take the steps that are necessary to designate a new beneficiary. If you designate a minor child as beneficiary, it is important to keep in mind that in the event of death while the child is still a minor, your ex-spouse will hold the proceeds as natural guardian of the minor child. If you set up a trust, you can avoid this consequence and name your own trustee to administer the funds for your minor child.
If you already have an estate plan, it is likely that you appointed your spouse as your health care surrogate, the decision-making person on your living will, the personal representative of your estate, and the trustee of your trust. It is therefore important for you to review and revise your estate plan while your divorce is pending in order to appoint a fiduciary who will act in your best interest in the event that you become unable to act for yourself.
