You’ve had a number of frustrating discussions with your spouse. While it seems that lately you’ve been unable to agree about anything, finally the two of you have a meeting of the minds: You need to divorce. What are your next steps? What legal issues should be considered? Don’t forget estate planning.
Estate Planning? But We’re Talking Divorce!
Indeed, while the “death of the marriage” may be foremost in your mind right now, you need also to be thinking about two important estate planning issues:
- What happens if you suffer an untimely death before the divorce is finalized?
- In light of the upcoming divorce, what changes are needed?
Until Divorce is Final, You’re Still Married
To state the obvious, until the final decree of divorce is signed by the judge, you’re still married. Your decision to divorce does not control. Your divorce negotiations do not control. The fact that your current spouse hates you does not control. After the divorce, Florida law treats your former spouse as if he/she had predeceased you. But until the divorce is final, you’re still married. If you die prior to the entering of the divorce decree, here’s what happens:
- If you have no Last Will and Testament, your spouse would inherit his/her intestate share of your property – depending upon the circumstances, it could be as much as 100 percent.
- Without a Will, even if Florida law set aside some of your assets for your minor children, your spouse would likely be named guardian of those assets and be able to control how they were dispersed on behalf of your children.
- If you have a Will, the terms of that Will still control. Many spouses have “reciprocal” Wills in which the surviving spouse inherits all of the property. Until the divorce decree, such a clause would still be in full effect.
Following Your Divorce, Estate Planning is Critical
While your former spouse generally has no inheritable interest in your property after the divorce is final, careful consideration should still be given to a newly crafted estate plan. If you have young children, for example, it is likely that you need to set up a testamentary trust to provide support, in the event that you aren’t around to handle things personally. You should review your life insurance and other assets that will provide support and maintenance for them as well. In any case, you need to consult with a qualified attorney who provides legal counsel in estate planning matters.
Is a Divorce in Your Future? Don’t Forget the Estate Planning Issues
If you are facing a divorce, separation, or other family law issue, you need to consider not only the important issues related to the dissolution of your marriage, but also the issues of property distribution upon your death. At Beller & Bustamante, P.L., we have the knowledge and experience not only to represent your interests vigorously when it comes to a divorce, but also to advise as to the changes that you likely need to make to your Will and other Estate Planning documents. Contact us online or call us at (904) 288-4414 today.