What a Florida Divorce Changes in Your Estate Plan Automatically, and What It Does Not
This is the supporting article for our page on updating your estate plan after divorce. That page tells you what to do. This one shows you the statutes, with links, so you can read the exceptions yourself.
Quick answer: After a Florida divorce: provisions of a will favoring the former spouse are void under section 732.507(2); the same rule applies to a revocable trust under section 736.1105(2); beneficiary designations of a former spouse on life insurance, annuities, IRAs, pay-on-death and transfer-on-death accounts are void under section 732.703(2), subject to the exceptions in section 732.703(4); a former spouse's authority as agent under a power of attorney ends when the divorce case is filed under section 709.2109(2)(b); and the former spouse's designation as health care surrogate is revoked under section 765.104(2). Property owned by the entireties becomes a tenancy in common under section 689.15. None of this replaces the former spouse with anyone; that is your job.
Every link below goes to the official Florida Statutes site. Read the exceptions. Several of these rules give way to what your own documents say, or to what the divorce judgment requires.
What happens to my will?
Section 732.507, Florida Statutes provides in subsection (2) that any provision of a will that affects the testator's spouse is void upon dissolution of the marriage, whether the marriage occurred before or after the will was signed, and that the will is construed as if the spouse died at the time of the dissolution. The statute carves out a will executed after the dissolution, a will that expressly provides otherwise, and a dissolution judgment that expressly provides otherwise.
What happens to my revocable trust?
Section 736.1105, Florida Statutes provides in subsection (2) the same rule for a revocable trust: any provision that affects the settlor's spouse is void upon dissolution, and the trust is construed as if the spouse had died at that time, with the same three exceptions.
What happens to beneficiary designations?
Section 732.703, Florida Statutes provides in subsection (2) that a designation made before the divorce, providing for payment or transfer at death of an interest in an asset to or for the benefit of the former spouse, is void as of the time the marriage was judicially dissolved. Subsection (3) lists the assets covered: life insurance, annuities and similar contracts whether or not held in an employee benefit plan, employee benefit plans, IRAs, pay-on-death accounts, and securities and accounts registered in transfer-on-death form. Subsection (4) lists when the rule does not apply, including: to the extent controlling federal law provides otherwise (which is the reason employer plans governed by federal law pay the person on the form); where the governing instrument was signed after the dissolution and expressly provides for the former spouse; where the dissolution order requires the decedent to maintain the asset for the former spouse; where the former spouse's interest could not be unilaterally changed; where the designation is irrevocable; where the instrument is governed by another state's law; where the asset is held jointly with survivorship; and where the decedent remarried the former spouse. Subsections (5) through (7) protect a payor that pays the named beneficiary without notice of the divorce, which is why the institution has to be told.
What happens to my power of attorney?
Section 709.2109, Florida Statutes provides in subsection (2)(b) that an agent's authority terminates when an action is filed for the dissolution or annulment of the agent's marriage to the principal, or for their legal separation, unless the power of attorney otherwise provides. Note the trigger is the filing of the case, not the final judgment.
What happens to my health care surrogate designation?
Section 765.104, Florida Statutes provides in subsection (2) that, unless otherwise provided in the advance directive or in the dissolution order, the dissolution or annulment of the principal's marriage revokes the designation of the former spouse as surrogate.
What happens to property we owned together?
Section 689.15, Florida Statutes provides that in the case of an estate by the entirety, the tenants become tenants in common upon dissolution of marriage. The deed still shows both names until a new deed is recorded. Separately, section 732.4015 restricts devise of the homestead when the owner is survived by a spouse or a minor child, which affects how a divorced parent can leave the house.
What does none of this do?
It does not name anyone new. A void designation, a revoked surrogate, a terminated agent, and a former spouse treated as deceased all leave a gap where a person used to be. Filling the gap is the estate plan. Read our plain-language page on the post-divorce plan and bring the final judgment.
Frequently Asked Questions
Does divorce automatically remove my ex from my 401(k)?
Usually not. Section 732.703(4)(a) makes Florida's rule yield to controlling federal law, and employer plans governed by federal law pay the beneficiary on file. Change the form.
When does my ex lose authority under my power of attorney?
When the dissolution, annulment or separation action is filed, under section 709.2109(2)(b), unless your document says otherwise.
Can a will written before the divorce still leave things to my ex?
Only if the will expressly provides that it survives dissolution, or the dissolution judgment expressly provides otherwise, under section 732.507(2). A will signed after the divorce can name the former spouse freely.
Does the divorce take my ex off the deed?
No. Section 689.15 converts entireties ownership to a tenancy in common, but the recorded deed is unchanged until a new deed is recorded.
Ready to fill the gaps?
Bring the final judgment and the settlement agreement. Flat fee, a few weeks, English or Spanish.
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