Florida statutes define non-marital or separate assets as the property received by either spouse separately by bequest, descent, non-interspousal gift, or devise. Therefore, an inheritance is considered a non-marital asset. A spouse should not be entitled to any part of another spouse’s inheritance.
Regarding an Estate Plan created during one’s marriage, per Florida Statute Section 732.507, a finalized divorce decree or final judgement of dissolution of marriage will remove a former spouse from receiving property, being assigned power of attorney at the other ex-spouse’s death or being named personal representative or executor of their estate.
After divorce, as the policy or account owner, one may designate their former spouse as beneficiary. To do that, a person should sign a governing instrument providing the benefit will be payable to their ex-spouse.
Under Florida law, when a bank account is titled in joint names and one of the persons dies, the account becomes the property of the surviving person on the account.
If a legal absolute divorce occurred before their spouse died, then that person is not entitled to inherit assets through their ex-spouse’s Last Will & Testament. However, one may inherit if their ex-spouse specifically named them in the Last Will after the divorce proceedings.
Any inheritance is a non-marital asset and therefore will not be divided in a Florida divorce. What is more, if a person sells that inherited asset and buys something new with the proceeds from said sale, the new purchase will remain a non-marital asset. However, the person is going to have to prove that the asset was inherited.
A proper estate plan can be used to address the protection and division of assets among the rest of family members, and even organizations or non-profits that one supports or is a member. A Pre-Nup (i.e., a Prenuptial Agreement or Marital Agreement) defines certain property rights while an estate plan is used to exercise those rights upon one’s death.
Marriage does not cancel a Last Will in Florida, but a spouse acquired after the execution of a Last Will may receive the same portion of the deceased spouse’s estate that he or she would have received had said deceased spouse died without a Last Will.
Simply put, an estate plan is a broader plan of action for one’s assets which may apply during one’s life as well as after their death. A Last Will, on the other hand, dictates where one’s assets will go after their death, who will be the guardian of their children and so on.
Under Florida law, death benefits payable under a life insurance policy are not subject to probate, if there is a beneficiary other than the deceased person and their estate. One must note that the amount paid out on a life insurance policy upon someone’s death is not technically owned by the policy holder.
Under Florida law, when a person adds the words “right of survivorship” to a joint tenancy, which means full title to the real estate goes to the owner that survives the death of the other(s). The “survivor” of the joint owners automatically owns 100% of the asset when the other joint owner (or owners) passes away.
A Personal Representative or executor cannot change beneficiaries’ inheritances or withhold their inheritances unless the Last Will has expressly granted them the authority to do so. The Personal Representative also cannot stray from the terms of the subject Last will or their fiduciary duty.
As for accounts or Life insurance with designated beneficiaries, one should change those beneficiaries while divorcing or after the said divorce or deal with them within the parameters of the subject divorce.
If both parties agree, it may be worth preparing a Pre-Nup or Post-Nup Agreement. Said agreements are legal documents that confirm the agreement that the couple comes to concerning their finances and protecting or dividing assets like pensions, property, savings, and investments as well as waiver of rights, etc. during a divorce or at the death of one of the parties. It is worthwhile considering such agreements.
Even if you receive an inheritance during your marriage, inheritances are considered separate property. Therefore, if you maintain the separate property status throughout the marriage, inheritances should not be subject to property division laws.
A nonmarital asset is an asset that one spouse has brought into the marriage, i.e., that was purchased prior to the marriage by one spouse. An example of nonmarital asset is real property, if one spouse owned a home that was purchased prior to the marriage, it is a nonmarital asset.
In Florida, a short marriage is one that lasts less than seven (7) years. If one spouse wants to pursue alimony, they should have been married for at least seven (7) years. The longer a couple is married, the more alimony someone can usually receive and the longer they can receive it.
In Florida, a spouse cannot be disinherited by a Last Will, and if there is no will, a spouse is entitled to a substantial part of the estate. The only exception to the above would be if a surviving spouse waived their rights through a Marital Agreement.
A Last Will provides clear instructions on the distribution of one’s assets after their death. A Pre-Nup is not enforceable for child custody and support issues. A Last Will can name a Guardian to protect any minor children and their inherited assets as well as a Declaration Naming Preneed Guardian for Minors.
When a married couple files for divorce in Florida, there will be an “equitable distribution” or the division of marital assets and liabilities pursuant to Florida divorce law 61.075, among others. Usually, the court will divide marital assets and liabilities 50/50 unless there are factors that would make an equal split inequitable.
In Florida, marital property is divided between couples during divorce, while separate property is not. If it is determined that a bank account is separate property, the other spouse will not have any right to the money.
Social Security is a federal benefit. Federal law preempts or trumps state dissolution of marriage (divorce) law, and federal law specifically provides that Social Security Retirement Benefits are not divisible in a divorce case per § 404.331(e), Code of Federal Regulations, etc.
If a person is going through a divorce and has children, they are still going to be a family. Divorce is not the end of the family. It is simply a restructuring of a family. As life changes over the years, one’s estate plan can change, modify, or evolve accordingly.
The foregoing is a very brief and general overview of the benefits of having a properly prepared estate plan, especially after a divorce in Florida.
If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.