Till Divorce Do Us Part – Florida’s New Beneficiary Designation Law

Robert J. Naberhaus III

Both the Florida Probate Code and the Florida Trust Code provide that upon a dissolution or annulment of marriage, a provision of a will or revocable trust affecting the decedent’s former spouse is void and the will and trust are administered as though such former spouse predeceased the decedent. But what happens to the decedent’s other assets, those passing to the former spouse outside of probate and the decedent’s revocable trust, such as life insurance, annuities, pay on death accounts or retirement benefits? Until now, Florida did not have a similar law for such assets and the Florida courts have held that these assets belong to the former spouse if such spouse remains designated as beneficiary after the marriage ends (See Crawford v. Barker, 64 So. 3d 1246 (Fla. 2011); Smith v. Smith, 919 So. 2d 525 (Fla. 5^th DCA 2005)). Effective July 1, 2012, however, new Florida Statute Section 732.703 applies to beneficiary designations made in favor of a former spouse for decedent’s dying on or after July 1, 2012. This new law provides that the portion of the beneficiary designation made in favor of the former spouse is void upon the dissolution or annulment of the marriage to the decedent. The statute does not apply, however, to the following:

Assets where the disposition is governed by federal law (ERISA) or where the beneficiary designation is governed by another state’s laws or a state-administered retirement plan
Assets having an irrevocable beneficiary designation
Assets having a beneficiary designation in favor of the former spouse which was signed after the dissolution or annulment
Where the court order dissolving or invalidating the marriage requires the decedent to acquire or maintain an asset for the benefit of the former spouse, or prohibits the decedent from unilaterally modifying the beneficiary designation
Where the decedent remarries the former spouse and they remain married until the decedent’s death
Assets owned jointly by the decedent and the decedent’s former spouse with rights of survivorship

The new statute is a welcome addition to Florida law as it will most often work to preserve the decedent’s intentions by preventing assets that pass by beneficiary designation from being inherited by a former spouse. But there still may be circumstances where old beneficiary designations need to be revised. Florida residents who are divorced or whose marriages have been invalidated should still review their estate plans, including their beneficiary designations, and certainly the titling of their assets.