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Another Reason to Update an Estate Plan During Divorce

Posted on: July 29th, 2015
Florida estate planningA recent Florida case showcases an estate planning problem that divorced couples might face. Carroll v. Israelson involved a will dispute among family members of former husband and wife Thomas Carroll and Wendy Israelson. During their marriage, Carroll signed a will that left his estate to Israelson with provisions stating that if she predeceased him the estate would instead pass to her niece and nephew. The will was not updated during the couple’s separation, and Carroll passed away one month following the divorce order.

Florida, like several other states, has state laws that, immediately upon divorce, invalidate provisions in a will that favor a former spouse. Although she had not died, Israelson was treated legally as having predeceased her husband on the day of the divorce, which poses two conflicting scenarios: Would Carroll’s mother be the heir of his estate under Florida intestacy law, or would the will provisions direct the estate to pass in trust to Israelson’s niece and nephew?

Although Florida law invalidates will provisions favoring an ex-spouse by treating divorced spouses as if both predeceased the other, the timing of this invalidation is critical when assessing estate disputes. Provisions benefiting a spouse become void upon divorce, not upon a decedent’s death. The court ruled in favor of Carroll’s surviving mother.

If Carroll had passed away one month prior to his divorce, however, and left his will unchanged, Carroll’s estate could have passed to his soon-to-be-ex-spouse. This is a reminder to separated couples navigating divorce in Florida to schedule thorough reviews of their respective wills, trusts, and beneficiary designations with an estate planning attorney. An important note about beneficiary designations: Designations in place at the time of the decedent’s death remain valid, regardless of terms reflecting otherwise in a will. This is true in all states, not just in Florida.

The court records for the case described above do not indicate that the couple above had a prenuptial agreement in place. If they had, each partner’s wishes could have been carefully preserved. Additionally, this particular couple had not executed a postnuptial agreement either. Our estate planning attorneys in Miami provide an overview of a case from 2014 that presents a caveat to postnuptial agreements in Florida: They are not valid in all states. This could result in estate disputes for relocating couples, yet another reason regular estate plan reviews are helpful.

By Attorney Samantha Reichle
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