With this question-and-answer segment about Divorce and Florida Estate Planning, we discuss probate and guardianship issues during the divorce process with expert Gina Chevallier.
Question: What are some of the issues you encounter with respect to the probate side related to divorces? If one of the parties dies before the case is complete, does that affect your will, probate, and the likes?
Answer: Until you have that final judgment of dissolution of marriage, the divorce is not yet final. The probate court doesn’t recognize what’s going on in your divorce proceeding in the sense that it doesn’t change your beneficiary either designations. It also does not change what you already have in a drafted will or anything of that nature. The spouse still has certain rights, including if the other party decided to just draft a will since the divorce has been going on for so long and just want the other spouse out of it. Under Florida law, the spouse still has certain rights, one of which is the elective share rights.
Question: Someone just initiated a divorce and they do have a will; do you have any advice or any recommendation you can give them from the onset?
Answer: I would sit down with them and then find out what their intentions are with regard to their current soon-to-be former spouse. Do they have children together? Are they minor children? who is going to handle the financial assets that are under your individual name in the event that you pass away? and some people have health issues, and they may say that even though they are going through this divorce proceeding and they think it’s going to happen.
They want to protect themselves and their children, so they will go ahead and draft a new will. In many cases, people don’t want their ex-spouse controlling all of their assets in the event of their death. The other thing is they may not want that person to serve as personal representative, but you also have others who trust their ex-spouse since they are still the parent of their child. It’s a case-by-case situation, and it really depends on a person’s priorities at the time.
Question: Are there certain documents you should get in order, correct, or modify after a divorce?
Answer: I always tell people that once you’ve gotten to divorce, the important thing is to take a look at your estate planning documents. Take a look at your beneficiary designations on your accounts, insurance policies, retirement accounts, and the likes. Make sure to take a full inventory that those documents reflect what your wishes are going forward. If you’ve gotten a divorce and you still want your former spouse to be in control of certain things, and you don’t want to make any changes to your will. I always recommend doing what’s called a codicil to your will indicating that you know your divorce was final on XX/XX/XXXX date and as of that date, you want no further changes to your will, and you are simply publishing this to republish the will stating that is in full force and effect.
Question: If you do a will or a trust where it says you don’t want your former spouse to receive anything and it should be going directly to your children, is that legal under Florida Law?
Answer: Yes, and you have to do it in either a will or a trust. You have to state either in a will or a trust with the proper formalities as to what you want to happen and with all the provisions.
Question: If something happens to you during a divorce or even post-divorce, can you put it on your will or trust that you want a certain thing for your children?
Answer: Absolutely, we can definitely do that. If it’s during the pendency of a divorce, I usually tell people maybe to do a last will and testament at the moment because we don’t want to start drafting a trust and then having to disclose it as part of disclosure requirements. If you don’t want to retitle assets during a divorce, you can draft a last will and testament, and you can update beneficiary designations as long as you are not yet to the point of your settlement talks.
Question: If you’re in the middle of divorce proceedings, what is it exactly that you have to disclose?
Answer: If you retitle an asset in the middle of a family law proceeding and you are still in the discovery phase, they may start questioning as to why are you retitling all of these assets, and you can just tell them that you are drafting a revocable living trust and usually it ends there. If you have a very litigious situation, you have to proceed a little more cautiously on that.
Attorney Chevallier has a practice in Coral Gables, Florida and specializes in Estate Planning and probate litigation. You can contact Mrs. Chevallier for more information on Estate Planning via phone at 305-974-1490 or via email at Clerk@chevallierlaw.com. Visit her YouTube page for more resources on this topic.
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