Should I Wait to Update my Estate Planning Until After I get Divorced?
Getting a divorce (or “dissolution of marriage,” if you’re in Florida - because...well, everything is longer and more complicated in Florida) is a big decision. It’s a decision to end the marriage, figure out what to do with the kids and determine the rightful ownership of assets. Sometimes it’s mutual, but sometimes it’s totally one sided. However, one thing is the same in every scenario, contested or uncontested, big or small - you need to protect yourself.
Most people think this means getting a great family law attorney to represent you and assert your rights, and they’d be right! But the protection should not and cannot end there. Everyone knows the saying, “It ain’t over until...someone sings.” You aren’t adequately protected when you hire that great family law attorney, and you certainly aren’t protected when the dissolution of marriage action is filed. You only have certain legal protections automatically given to you once your divorce is finalized, meaning you have a certified copy of a final judgment for dissolution of marriage in hand (in short, a final Court Order saying, “I the honorable Judgy McJudgerson hereby decree that you two former lovebirds are no longer a thing, share the little chiks according to some plan/schedule and that your assets are hereby split in two(ish)”).
I know what you’re thinking - what happens if I die or become incapacitated DURING my dissolution of marriage? This thing could take years to finalize, and given the dangers of driving on I-95, US-1, plane crashes and the occasional pandemic that makes an appearance every so often, I might not make it through this thing in one piece! Well, you’ve come to the right place, and the good news is, there’s an answer. The bad news is, if you become incapacitated, your spouse is still legally your primary choice for making your medical decisions and pulling the plug if you’re incapacitated or near death, and your spouse is going to inherit just about everything if you die. This is what one might call adding insult to injury. Our first advice, if you can help it, is don’t get really hurt, sick or die while divorcing. If you can’t control that (and we don’t blame you if you can’t), here’s something you can control: Updating your estate plan right after you sign up with your new, shiny, fancy family law attorney!
Many family law attorneys think that you can’t change your estate plan once you’ve filed for divorce, and they’re kind of right. But, like most things in the law, there are loopholes, and since it’s legal, you should use them to protect yourself and your family! You see, in Miami-Dade County, along with many other Florida Counties, there’s this document called a “Status Quo Order.” This very official document gets circulated upon filing a dissolution of marriage or paternity action, and it pretty much says that this Order is effective immediately until the case is finished. It also says that it’s in the best interests of the parties in a dissolution of marriage or paternity action to learn about the problems, duties and responsibilities that may arise during their dissolution or paternity proceeding and it’s also important for the parties to preserve their assets, act in the best interests of their children and comply with Court rules and orders. Then a bunch of scary commandments are spelled out, and the most relevant ones, for this lesson, are as follows: Thou shalt not dispose of thy personal or shared assets, thou shalt not conceal/destroy business/personal records, thou shalt not modify/terminate insurance policies and thou shalt not incur unreasonable debt (don’t worry - paying your divorce attorney a ton of money to win doesn’t really count here).
As someone who plays an attorney on Zoom, I can tell you - there’s a lot of wiggle room in there. Here are the commandments that you can in fact follow:
(1) Thou shalt update thy Last Will and Testament - Did you know that if you die and you and your spouse have only the same shared children, your spouse is entitled to 100% of your estate if you die without a Will? That number typically drops to 50% of your assets upon divorce. But, they’re only entitled to...wait for it... 30% of your estate if you die when your Will has the right language! Crazy, we know, but this deathly amount is called the “Elective Share” and you’re allowed to modify your Will during your divorce!
(2) Thou shalt update thy Power of Attorney - Did you know that if you become incapacitated in an accident or through an illness, no one has the legal right to keep acting on your behalf without this document? Not even your family law attorney. Wouldn’t it be nice if your sister/brother/friend had the right to go pay your bills, or even better - keep your divorce moving forward while you were taking an extended nap in the ICU? We have gotten an incapacitated person divorced before, but it was only because they had these documents in place and stayed alive long enough to get that final judgment. The evil ex only got 50% of the assets instead of the 100% that she was going to get if we didn’t finish the divorce while the poor guy was in a coma.
(3) Thou shalt update thy Health Care Advance Directives - Do you want your soon-to-be ex-spouse accessing your most sensitive healthcare information? Making decisions on your care when you’re in a coma? Be responsible for making the decision to pull the plug? Didn’t think so. If the pandemic wasn’t enough to scare you into getting this done, hopefully your evil spouse’s itchy trigger finger is the motivation that you needed.
This article is written by Florida attorneys and only considers Florida law in place at the time of publication, on January 8th, 2021. This article should not be relied upon as a substitute for legal advice and one should always consult with an attorney in their state before making any legal decisions.
At The Estate Plan, we take pride in serving our clients with compassion, competence and creativity. After all, we're all unique. It takes a special comfort and confidence to trust someone to handle protecting one's family and possessions. We appreciate being that person for so many families. If you are interested in coming in for a consultation, do not hesitate to contact us at (305) 665-8888.