Estate Issues That Arise From a Divorce
When you are negotiating a divorce, issues of estate planning, wills or trusts may be the last things on your mind. However, estate and planning issues come into play all the time in divorce cases, and many times, problems related to these areas can come back to haunt spouses years after the divorce if their divorce agreements are not planned properly.
Provisions Leaving Property to Spouses
The good news is that if you have a will that has left property to a spouse, and you get divorced, the provision becomes automatically void. However, that can result in other problems—for example, if the provision leaving property to your wife is void, who gets your property? You may need to completely redraft your will.
In some cases, there may be a string of beneficiaries—for example, property passing to a wife to a son to an aunt. That string may be broken once the wife loses the right to inherit due to the divorce.
The same is true for health care surrogate documents. If you have designated your wife, those documents are likely voided after your divorce (depending on language in the documents). The same is true for pay on death accounts, or life insurance policies that leave funds to beneficiary spouses. These documents likely need to be revisited and revised.
Automatic Transfers of Property
Remember that when property is owned by a married couple, it often will automatically transfer to the spouse should one spouse pass away because the property is owned by the couple as what is known as tenants by the entireties. However, that right ends on divorce.
That means that if you intend on inheriting property should your spouse pass away even after divorce, you can’t count on that happening automatically—you’ll need a document that says that, leave it in a trust with these instructions, or accomplish it some other way.
Equitable Distribution After Death
In many cases, a party may be making payments to the other party not as alimony or child support, but to compensate the other spouse for their share of a marital asset. What happens if the party receiving payments passes away before all the payments are made? You may want a divorce agreement or an estate document that says that the payments will not end, but rather will continue to be paid to the decedent’s beneficiaries.
As for the paying party, there may need to be provisions that ensure that if he or she passes away, payments continue to be made by the deceased’s beneficiaries.
These issues don’t even begin to address the complex issues of step kids, or spouses or kids of previous or subsequent marriages. Depending on who you want to inherit property, who you may want to “disinherit,” and a divorce order or marital settlement agreement, the issues can be complex and all documents need to match up to make sure there are no problems later on.
The Tampa family law attorneys at The Pawlowski//Mastrilli Law Group can help you deal with problems that you may not immediately think of in your Florida divorce case. Call us with any questions you may have.