Estate Planning Oversights That Create Additional Issues During Same-Sex Divorce
Divorce affects more than property ownership, support, and parenting arrangements. Estate planning documents may still give a spouse rights over financial accounts, property, or important financial decisions while a divorce is pending. Beneficiary forms, trusts, wills, and powers of attorney may also change at different points in the dissolution process.
Same-sex spouses may enter divorce with estate planning documents created before and during the marriage, sometimes in different states or under different legal circumstances. Because older estate planning decisions may continue to affect property and financial authority during a divorce, an experienced Stuart LGBTQ same-sex divorce lawyer can review the rights that remain in place while the marriage is being dissolved.
Beneficiary Designations May Remain Important Until the Divorce Is Final
Life insurance policies, retirement accounts, payable-on-death accounts, and transfer-on-death accounts often pass according to beneficiary designations rather than a will. A spouse named years earlier may remain on the paperwork after separation and after the divorce case has been filed.
Florida Statute § 732.703 generally revokes a former spouse’s designation on covered assets once the marriage has been judicially dissolved. For covered assets, a pre-divorce designation benefiting a former spouse is generally treated as void once the marriage is dissolved, and the asset passes as though the former spouse had predeceased the account owner. The statute contains exceptions, including situations controlled by federal law or a divorce judgment requiring an asset to remain for the benefit of a former spouse or children.
A beneficiary designation may remain effective during the pending divorce even though Florida law would treat it differently after the final judgment. Until the divorce is final, the account’s existing beneficiary terms may still control unless a court order or governing law changes the result.
Revocable Trusts May Preserve Rights During the Divorce
A revocable trust may name a spouse as a beneficiary, give the spouse rights to trust property, or place the spouse in a fiduciary position. Long-term relationships often produce multiple trust amendments as property is acquired, transferred, or retitled.
Under Florida Statute § 736.1105, provisions of a revocable trust affecting a spouse generally become void when the marriage is dissolved. The trust is generally construed as though the former spouse died when the marriage was dissolved. A trust executed after the dissolution, language expressing a contrary intention, or provisions preserved by the dissolution judgment may produce a different result.
During the divorce, a spouse may still hold beneficial or fiduciary rights under the existing trust. A trust holding real estate, investment assets, or family property may continue giving the other spouse beneficial or fiduciary rights during the divorce.
A Power of Attorney May Change When the Divorce Is Filed
A spouse may have authority to manage bank accounts, investments, real estate transactions, business interests, or other financial matters under a durable power of attorney signed during the marriage.
Florida Statute § 709.2109 generally terminates a spouse-agent’s authority when an action for dissolution, annulment, or legal separation is filed, unless the document provides otherwise. For a power of attorney, the filing itself may end the spouse’s authority before the marriage is formally dissolved.
An older power of attorney may name successor agents or contain terms that alter the statutory result. If the document names a successor agent, that person may assume financial authority while the divorce is still pending.
Divorce May Revoke Provisions in a Will
A will may leave specific property to a spouse, name the spouse as a residuary beneficiary, or nominate the spouse to serve as personal representative of the estate.
Under Florida Statute § 732.507, provisions of a will affecting a spouse generally become void when the marriage is dissolved. Florida law generally treats the former spouse as having predeceased the person who made the will, subject to statutory exceptions.
An older will may name the same spouse in several different roles. A gift of property, a share of the residuary estate, and a fiduciary appointment may each have been created at a different point in the couple’s financial life. Amendments and codicils signed later may also change only part of the original plan.
Older Planning Documents May Reflect Different Stages of a Same-Sex Relationship
Before same-sex marriage was legally recognized nationwide, estate planning documents often carried much of the legal weight that marriage later supplied automatically. Trusts, beneficiary arrangements, powers of attorney, property agreements, and other documents were often used to establish financial authority or inheritance rights that marriage later supplied through a different legal framework.
After marriage, newer planning decisions did not always replace documents signed earlier in the relationship. Documents signed years apart may contain conflicting instructions about the same property or financial authority. Pre-marriage provisions may still exist alongside later amendments made after the couple married.
Interstate moves may add another complication. Documents executed in another state may also be governed by different execution requirements or choice-of-law provisions. Conflicting versions of an estate plan are easier to uncover during the divorce than after a trustee, account administrator, or probate court is asked to determine which document controls.
When an estate plan has evolved over many years of a relationship, guidance from a Stuart LGBTQ same-sex divorce lawyer can help determine which provisions still affect the spouses as the marriage ends.
Contact McBride Legal Group
If you are going through a same-sex divorce in Stuart or elsewhere in Martin County, estate planning documents left untouched may continue to affect financial authority, beneficiary rights, and property intended to pass at death.
McBride Legal Group approaches family law matters with careful preparation and a trial-ready strategy from the beginning. Contact McBride Legal Group to speak with an experienced Stuart LGBTQ same-sex divorce lawyer and discuss how existing estate planning documents may affect your divorce and financial interests.
Sources:
- Florida Statutes § 732.703 — Effect of divorce, dissolution, or invalidity of marriage on disposition of certain assets at death
leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/Sections/0732.703.html - Florida Statutes § 736.1105 — Effect of subsequent marriage, birth, adoption, or dissolution of marriage
leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0736/Sections/0736.1105.html - Florida Statutes § 709.2109 — Termination or suspension of power of attorney or agent’s authority
leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0709/Sections/0709.2109.html - Florida Statutes § 732.507 — Effect of subsequent marriage, birth, adoption, or dissolution of marriage
leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/Sections/0732.507.html