Estate Planning Issues in a Divorce Situation II: An Update and Standing Orders

In 2012, Ms. Brunner wrote an article in a journal about the rights of married couples in the process of getting a divorce and after the divorce is finalized. The article discusses how automatic orders in divorce cases may give more rights to the spouse who files for divorce than to the spouse in a regular marriage. It also talks about what happens if one spouse becomes incapacitated during the divorce process. If you give someone the power to make decisions for you (like in a Durable Power of Attorney) or to make health-care decisions for you (like in a Health Care Surrogate), and then you get divorced, those powers automatically end. This is to protect you from your ex-spouse making decisions for you when you may not want them to. The same goes for a living will – if you don’t want your ex-spouse making decisions about whether to prolong your life, you should change your living will when you file for divorce. If someone gets sick and can’t make their own health decisions, their spouse can usually make decisions for them. If there’s no spouse or if the spouse is unable to make decisions, a court can appoint someone else to make decisions for them.

If a spouse becomes unable to manage their own money, the other spouse can ask a court to make them in charge of the sick spouse’s money. The court will usually pick a family member to be in charge. Before something bad happens, the person who might get sick can choose who they want in charge of their money.

If a married person has a trust and they get a divorce, the soon-to-be ex-spouse might still be responsible for the trust if the divorce papers don’t say otherwise. If the person who made the trust doesn’t want their ex-spouse to be in charge of it anymore, they can change the trust to say so.

If one spouse dies while they’re getting divorced, the divorce might not happen if the court agrees. If someone has specific instructions for their burial, they should write them down to avoid disputes. When a married person dies, their spouse will receive what they are entitled to under a will or trust, unless the documents say otherwise. If a couple is getting divorced, they can change their will and trust documents to remove their soon-to-be ex-spouse. However, this doesn’t affect the ex-spouse’s right to inherit a portion of the estate if they choose to. When a married couple gets divorced, any parts of a will or trust that involve the ex-spouse are no longer valid. In terms of life insurance, annuities, and retirement accounts, the spouse can no longer change who will receive the money after the divorce is filed. When a couple gets divorced, the person listed as a beneficiary on a life insurance or annuity policy will be changed to someone else, unless the divorce judgement says otherwise or there are special circumstances. After the divorce is final, the person who owns the policy should update it to reflect the agreement they made during the divorce, including who will get the money if they die. ERISA is a federal law that affects how retirement plans, like 401(k) plans, are handled in a divorce. Normally, when you get divorced, your ex-spouse loses the right to the money in your retirement plan. But with a 401(k) plan, your ex-spouse can still get the money if they are still listed as the beneficiary on the plan. If you want to make sure your ex-spouse can’t get the money, you need to fill out a special form with the plan administrator to designate a new beneficiary. If you don’t do this, your ex-spouse could still get the money, even if your divorce agreement says they shouldn’t. Also, if you want to name someone else, like your children, as a beneficiary for a portion of the money, you need your ex-spouse’s written permission to do so. When someone passes away in Florida, their bank accounts and joint assets like real estate or securities can pass to a named beneficiary or surviving joint owner. There are laws in place to protect a surviving spouse from being left out of their partner’s estate, unless they have given up those rights. These laws are like a safety net set up by the government to make sure everyone is treated fairly. If someone dies without a will, their spouse will get a share of their assets based on state laws. If the spouse is not happy with what they get, they can choose to take 30% of the deceased person’s total estate instead. This includes things like property and money that were not specifically left to someone else in a will. This rule is meant to make sure that the spouse doesn’t get left with nothing. Even if the deceased person’s will says something else, the spouse still has the right to this 30% share. This rule also applies to things like life insurance and retirement plans, so the spouse can still get their share of those even if the deceased person named someone else as the beneficiary. If someone dies without a will in Florida, their spouse may still get part of their property. The spouse can also get rights to the family home, some household items, and a car. If the deceased was supporting their family, the spouse and kids can get some money too. The spouse can give up these rights, but they have to do it in a specific way. When a divorce case starts, the court may make temporary rules that stop you or your spouse from making changes to things like life insurance or retirement plans. After the divorce is final, you can make changes, but the court’s ruling still applies. If one of you dies during the divorce, the court doesn’t have a rule for what happens to those things. One of you might ask the court to stop the other from changing their will to remove the other person as a beneficiary. The rules assume both of you will stay alive until the divorce is final, but that might not happen. The Florida Supreme Court says people have the right to decide who gets their property when they die, but the state can make some rules to protect people’s well-being. There are laws in Florida that protect a spouse’s right to inherit some of their partner’s property, even if it’s not in their will. Some people think these laws are unfair, but the courts say they’re important to make sure surviving spouses are taken care of. The standing orders in divorce cases can restrict a spouse from making changes to their retirement accounts and life insurance policies. This means that if a spouse were to die during the divorce process, the other spouse could end up receiving all the money from these accounts, even if the deceased spouse didn’t want that to happen. This could give one spouse more money than they would normally get in a divorce. A proposed standing order would protect a surviving spouse’s financial interests in the event of the other spouse’s death by ensuring they receive at least 30% of the assets. Any changes to beneficiaries must be reviewed to make sure the surviving spouse gets their fair share. The order also allows for changes after a divorce. If someone wants to change who gets their assets when they die, they need the other person’s permission or a court order. They can still update their health care and financial representatives without permission. This article talks about how divorce and estate planning are connected, and how Florida law allows people to change their wills and other estate planning documents during a divorce. It also discusses how temporary orders in a divorce case can affect a person’s right to leave their property to someone else after they die. The article suggests language that temporary orders should follow the rules in the Florida Probate Code, which gives some protection to a spouse who might otherwise be left out of their partner’s will. Florida laws, such as Fla. Stat. §732.301, deal with issues related to family and estate matters. Donna J. Marshall is a lawyer who has experience in family law, including divorce cases and premarital agreements. She is licensed in Florida and Massachusetts and has special certifications in family law. S. Dresden Brunner focuses on estate planning and probate law in Naples, Florida. This information comes from a column submitted by the Family Law Section.

Source: https://www.floridabar.org/the-florida-bar-journal/estate-planning-issues-in-a-divorce-situation-ii-an-update-and-standing-orders/