Divorce and Estate Planning Updates

Divorce changes nearly every aspect of your financial and personal life, yet many Miami residents overlook one of the most consequential areas affected by the end of a marriage: their estate plan. The will you signed years ago, the trust that names your spouse as trustee, the life insurance policy payable to your husband or wife, the power of attorney granting your spouse control over your finances—every one of these documents was built around a marriage that is ending or has ended. Failing to update them can produce results you never intended, from a former spouse inheriting your assets to the wrong person making medical decisions on your behalf.

Our Miami law firm helps clients navigate the intersection of divorce and estate planning. Whether you are contemplating divorce, in the middle of proceedings in Miami-Dade County, or recently divorced, this page explains what Florida law does automatically, what it does not do, and the specific steps you should take to protect yourself, your children, and your legacy.

Why Divorce Demands an Immediate Estate Plan Review

Most married couples build their estate plans around each other. Spouses typically name one another as primary beneficiary, personal representative, trustee, attorney-in-fact, and health care surrogate. When the marriage ends, that entire framework collapses—but the documents themselves do not disappear. They remain legally operative unless the law revokes specific provisions or you affirmatively replace them.

Florida law provides certain automatic protections for divorced individuals, but those protections are incomplete, and they generally take effect only when the divorce is final. During the months—sometimes years—that a dissolution of marriage case is pending in the Eleventh Judicial Circuit, your existing documents remain fully effective. If you were to die or become incapacitated during that window, your estranged spouse could inherit your estate, control your finances, and direct your medical care. Understanding this timeline is essential to protecting yourself.

What Florida Law Changes Automatically After Divorce

Florida has enacted several statutes designed to prevent an ex-spouse from receiving unintended windfalls after a final judgment of dissolution. It is important to understand both the reach and the limits of these provisions.

Wills: Provisions for a Former Spouse Are Voided

Under Section 732.507 of the Florida Statutes, any provision in a will that affects the testator's former spouse becomes void upon divorce. The law treats the former spouse as if he or she died at the time the marriage was dissolved. This means a bequest to your ex-spouse will fail, and your ex-spouse cannot serve as personal representative under the old will.

However, this statute only voids the provisions relating to the former spouse. The rest of the will remains in effect, which can create gaps, ambiguities, and unintended distributions. If your will left everything to your spouse with no meaningful contingency planning, your estate may pass under Florida's intestacy rules or to backup beneficiaries you never seriously considered. A voided provision is not a substitute for a thoughtfully redrafted will.

Revocable Trusts: Similar Treatment

Section 736.1105 of the Florida Statutes applies a parallel rule to revocable trusts. Upon dissolution of marriage, provisions of a revocable trust benefiting the former spouse—or appointing the former spouse as trustee—are treated as though the former spouse died on the date of the divorce. As with wills, the statute does not rewrite the trust; it merely strikes the ex-spouse from it. Successor provisions you drafted a decade ago will control, whether or not they still reflect your wishes.

Beneficiary Designations on Financial Assets

Section 732.703 of the Florida Statutes voids beneficiary designations in favor of a former spouse on many nonprobate assets, including life insurance policies, annuities, individual retirement accounts, and pay-on-death bank accounts. When the statute applies, the asset passes as though the former spouse predeceased the owner.

This statute contains significant exceptions. It does not apply where a court order—such as your final judgment or marital settlement agreement—requires the designation to remain in place, where the owner re-designates the former spouse after the divorce, or where certain employer-sponsored retirement plans governed by federal law are involved. For those employer plans, the beneficiary form on file with the plan administrator often controls regardless of what happened in the divorce. Relying on the statute instead of proactively changing your designations is a gamble no one should take.

Powers of Attorney: Revoked When the Divorce Is Filed

Florida provides one important protection that takes effect before the divorce is final. Under Section 709.2109 of the Florida Statutes, if your spouse is your agent under a durable power of attorney, that authority is automatically suspended or terminated when an action for dissolution or annulment of marriage is filed. This prevents an estranged spouse from using the power of attorney to drain accounts or transfer property during the litigation.

Health Care Surrogate Designations

Under Section 765.104 of the Florida Statutes, a designation of a spouse as health care surrogate is revoked upon divorce or annulment unless the document expressly provides otherwise. Note that this revocation occurs at the final judgment—not at filing. While your Miami divorce is pending, your spouse may still hold authority to make life-and-death medical decisions for you unless you execute a new designation.

The Dangerous Gap: While Your Miami Divorce Is Pending

The period between filing a petition for dissolution and entry of the final judgment is the most vulnerable stage. During this window:

• Your existing will and revocable trust remain fully effective, and your spouse remains a beneficiary and fiduciary under them.
• Your spouse retains rights as a surviving spouse under Florida law, including the elective share—a statutory right to a percentage of your elective estate—as well as homestead protections and intestate inheritance rights if you die without a will.
• Your health care surrogate designation naming your spouse remains valid.
• Beneficiary designations naming your spouse remain effective, and cases in Miami-Dade County are frequently subject to standing administrative orders and temporary injunctions that restrict changing insurance beneficiaries or transferring assets while the case is pending.

This last point deserves emphasis. Family courts routinely prohibit parties from altering beneficiary designations, canceling insurance, or dissipating marital assets during the proceedings. Changing certain designations without court approval can expose you to contempt sanctions. That does not mean you are powerless—it means the updates must be made strategically and lawfully. There is generally nothing preventing you from executing a new will, a new health care surrogate, a new living will, and a new durable power of attorney while the divorce is pending. An experienced attorney can help you make every permissible change immediately and prepare the remaining changes to take effect the moment the final judgment is entered.

Estate Planning Steps to Take During Divorce

If you have filed for divorce or expect to file soon, consider the following actions with the guidance of counsel:

1. Execute a new will. Remove your spouse as beneficiary and personal representative to the fullest extent the law allows. Be aware that until the divorce is final, your spouse retains elective share and homestead rights that a will alone cannot defeat, but a new will still dramatically limits what your estranged spouse would receive.
2. Sign a new durable power of attorney. Even though filing suspends your spouse's agency, you need a trusted person—an adult child, sibling, parent, or friend—empowered to act if you become incapacitated.
3. Execute a new health care surrogate designation and living will. Do not leave your medical decisions in the hands of someone you are litigating against.
4. Review your revocable trust. Depending on the trust terms and any court restrictions, you may be able to amend or restate the trust now, or at least prepare amendments for execution upon final judgment.
5. Inventory all beneficiary designations. Compile every life insurance policy, retirement account, annuity, and pay-on-death account. Determine which designations can be changed now and which must wait for court approval or final judgment.
6. Address digital assets and account access. Update passwords, review authorized users, and document digital property that should be covered in your new plan.
7. Coordinate with your divorce attorney. Your marital settlement agreement should expressly address life insurance obligations, retirement account divisions, and any beneficiary designations that must be maintained for support security.

Estate Planning Steps After the Final Judgment

Once your Miami divorce is final, complete the transition with a comprehensive update:

• Replace, do not just rely on, statutory revocation. Execute a new will and, if appropriate, a new or restated revocable trust that reflects your post-divorce wishes from a clean slate.
• Formally change every beneficiary designation. Submit new forms to each insurer, plan administrator, and financial institution. Confirm the changes in writing. This is especially critical for employer-sponsored retirement plans, where the plan document and beneficiary form may control over Florida statutes.
• Retitle assets. Property divided in the divorce must actually be retitled—deeds recorded, accounts transferred, vehicles re-registered. Joint tenancy with right of survivorship between former spouses should be severed so an ex-spouse does not inherit by operation of law.
• Update your homestead planning. If you received the marital home in Miami, address the homestead exemption, review how the property should pass at your death, and record any deed changes required by the settlement agreement. Florida's homestead rules impose unique restrictions on devising a primary residence, particularly when minor children are involved, and they require careful drafting.
• Honor obligations in the settlement agreement. If you are required to maintain life insurance for the benefit of your children or former spouse as security for alimony or child support, your new estate plan must be consistent with those obligations.

Protecting Minor Children After Divorce

Parents in Miami often have two pressing concerns after divorce: who would raise the children if something happened to both parents, and who would control the money the children inherit.

Guardianship Nominations

If your former spouse survives you, he or she will ordinarily assume full parental responsibility. But your will should still nominate a guardian to serve if both parents die or if the other parent is unable or unfit to serve. Without a nomination, the court decides with no input from you.

Trusts for Children—and Keeping Your Ex Out of the Money

Here is a scenario we see frequently: a divorced parent leaves everything outright to minor children. The parent dies, and because the children are minors, a guardianship of the property must be established—and the surviving parent, your former spouse, is often the person managing those funds until the child turns eighteen, at which point the child receives everything outright.

A properly drafted trust solves this problem. You choose the trustee—a trusted relative, friend, or professional fiduciary—who manages the inheritance for your children's benefit on your terms. You control the ages and conditions of distribution, keep the funds out of your former spouse's hands, and protect the inheritance from a child's future creditors or an eighteen-year-old's judgment.

Remarriage and Blended Families

Many divorced Miamians eventually remarry, which introduces a second layer of planning issues. A new spouse acquires significant rights under Florida law, including elective share, homestead, and intestate succession rights, which can unintentionally disinherit children from a prior marriage. Prenuptial agreements, marital trusts, and careful beneficiary planning allow you to provide for a new spouse while preserving an inheritance for your children. If you are contemplating remarriage after divorce, address these issues before the wedding—waivers of spousal rights are far easier to obtain in a prenuptial agreement than afterward.

Key Documents and Timing at a Glance

Frequently Asked Questions

Does my will become invalid when I get divorced?

No. Your will remains valid, but Florida law voids the provisions that benefit your former spouse or appoint your former spouse as a fiduciary. Because the remainder of the document stays intact, the practical result may be very different from what you would choose today. A new will is always the better course.

Can I change my life insurance beneficiary while my divorce is pending?

Often not without court approval. Divorce cases in Miami-Dade County are typically subject to orders restraining changes to insurance and beneficiary designations during the proceedings. Consult your attorney before making any changes so you do not violate a court order.

What happens if I die during my divorce?

Because you are still legally married at death, your spouse generally retains full spousal rights, including under your existing will, the elective share, homestead protections, and existing beneficiary designations. This is precisely why executing updated documents at the start of the divorce is so important.

My ex-spouse is still the beneficiary on my retirement account. Is that a problem?

Potentially, yes. While Florida law voids many former-spouse designations, exceptions exist—particularly for certain employer-sponsored plans and for designations required by your settlement agreement. Never rely on the statute; file new beneficiary forms and confirm them.

Speak With a Miami Divorce and Estate Planning Attorney

Divorce is not just the end of a marriage—it is the beginning of a new legal and financial identity that your estate plan must reflect. Our Miami attorneys work at the intersection of family law and estate planning, coordinating your dissolution proceedings with the wills, trusts, powers of attorney, health care directives, and beneficiary updates that protect you at every stage.

Whether you are considering divorce, litigating in Miami-Dade County, finalizing a settlement, or years removed from a final judgment with an estate plan you have never revisited, we can help. Contact our office today to schedule a confidential consultation and take control of your future.

You can contact us by phone at 786-522-1411 or by email at [email protected].