Updating Your Will or Trust After Divorce

Divorce leads to a great number of changes in a person’s life. One of the changes is the couple’s individual estate plans. Divorced spouses often are concerned that their existing will or living trust has to be rewritten after divorce.

Concerns About Divorce

Most married couples have a living trust or will that includes reciprocal bequests to a surviving spouse. A typical estate plan provides that the first spouse to die leaves all their assets to the surviving spouse outright or in a marital trust. Upon the death of the second spouse, the remaining marital assets go to the couple’s children.

A divorce upsets this typical marital estate plan. Neither spouse wants their assets to pass to the former spouse upon death. Neither spouse wants to provide assets to the former spouse other than the financial support required in the divorce agreement or court order of dissolution. Both spouses are concerned about what could happen to assets left to a former spouse in the event the former spouse remarries and possibly has additional children.

During divorce proceedings, divorcing spouses focus on the terms of their divorce, such as financial support and child custody. Most divorce attorneys do not also practice estate planning law, and they do not have the experience to assist their clients with estate planning issues after divorce. For this reason, most divorcees do not consider their estate planning documents during the divorce process.

The children of a divorced spouse may be alarmed when a parent dies and the children discover an old living trust that leaves the parents’ assets to a former spouse, maybe even a former spouse that has remarried. The children may believe that the old, pre-divorce trust or will has effectively disinherited them because the surviving parent will use the inherited assets to support a new spouse and children.

What Happens to Trust or Will After Divorce?

Florida, and several other states, have statutes that protect the descendants’ inheritance from a divorced spouse, and these laws guard against the unwanted effects of a divorce on a spouse’s estate plan.

Florida statutes provide that a final judgment for divorce invalidates any provision of a living trust that affects the trustmaker’s former spouse. After divorce, the trust provisions are construed as if the trustmaker’s former spouse had died as of the date of marriage dissolution.

In other words, no matter what is written in a living trust, a former spouse cannot inherit, cannot be a trust beneficiary, and may not serve as successor trustee. Couples are free to circumvent the statute by providing contrary provisions in their divorce agreement or final court order.

Power of Attorney

There are similar statutes applicable to advanced planning directives. A former spouse may not serve as health care surrogate or have powers under a living will following the final judgment of dissolution.

The law regarding power of attorney removes the rights of the maker’s spouse as soon as a petition for dissolution is filed. This law prevents a divorcing spouse from using an existing power of attorney to access the ex-spouse’s financial accounts during the divorce process.

Issues During Divorce Proceedings

The statutes terminating a former spouse’s rights in living trust or will are applicable only after a divorce is legally final. Existing estate planning documents remain effective during the course of divorce proceedings. Filing for divorce has no effect on current living trusts, wills, and advanced directives.

If one spouse dies during the course of divorce proceedings, the surviving spouse will inherit property and have control over property as successor trustee or personal representative. The divorce process is frequently complicated or adversarial, and there can be a long time between the filing of a divorce and the final judgment. Updating estate plans early in the divorce process minimizes the unfortunate effect of a pre-existing estate plan in the event of a death prior to finishing the divorce.