How Will Probate Affect Your Blended Families?
Estate planning is about preparing for the future. It centers around someone who wishes to make the hard decisions now so that their family and loved ones are not left to manage or argue over an estate and its assets.
There are numerous reasons why anyone with property or a bank account should create an estate plan. The complexity of each person’s plan varies depending on their assets. If you have children from a previous marriage and decide to get remarried, estate planning is a proper vehicle and tool for ensuring your children receive a designated portion of your estate, and honor the terms of your previous divorce.
What is a Mixed or Blended Family?
A mixed family, often referred to as a blended family, is a family unit where one or both parents have children from previous relationships, and these families come together to form a new family structure. This can include step-siblings, half-siblings, and step-parents.
Mixed families can also encompass families with diverse cultural, racial, or ethnic backgrounds, where members come from different heritages or traditions. These families often navigate unique dynamics and challenges as they blend different family histories and traditions into a cohesive unit.
How A Conflict Arises
Wills can be contested during probate for many reasons, a previous divorce agreement being one of them. Depending on the circumstances, it can be a costly and time-consuming endeavor. Look again at the previous example of the person who got remarried. What happens if that same person decides to avoid estate planning?
When that person passes away, their assets get distributed according to intestate laws. In other words, the law of the state determines how their assets are distributed. Unless the deceased had made their intentions known through a multitude of estate planning tools, then their wishes do not get taken into consideration. But how does a previous divorce affect the probate process?
1. Changes in Beneficiary Designations
After a divorce, one of the first aspects to review is your beneficiary designations on assets such as life insurance policies, retirement accounts, and payable-on-death bank accounts. Florida law generally revokes an ex-spouse as the beneficiary of these types of accounts or policies unless specific language states otherwise (or if the designation was made post-divorce).
However, if you don’t update your beneficiaries, the wrong person could still end up benefiting from your estate after probate. For instance, an outdated 401(k) plan may pass to your ex-spouse instead of your intended beneficiary, the children you had from your current and/or previous marriage.
Review and update all beneficiary designations immediately after your divorce becomes final. This ensures that your assets go to the individuals you choose, not to someone you’ve severed ties with.
2. Impact on Wills and Trusts
Florida law also renders provisions in your will that favor an ex-spouse void upon divorce. For example, if your will states that your ex-spouse is to inherit a specific asset, this clause is treated as though the ex-spouse predeceased you. However, other parts of your will remain valid.
If you fail to revise your will, this can create unintended gaps in your estate plan, potentially leaving assets to pass under Florida’s intestate succession laws. Intestate succession laws are not likely to align with your wishes.
Trusts are a slightly different story. While some provisions favoring a former spouse may be automatically revoked, not all trusts follow this rule. Irrevocable trusts and those created as part of a marital settlement agreement may still name your ex-spouse as a beneficiary, creating room for legal disputes.
Consult an estate planning attorney to revise your will and trusts to reflect your new life circumstances. Remove or alter any provisions involving your ex-spouse unless you want them to remain a beneficiary.
3. Divorce Settlements and Asset Distribution
Your divorce settlement lays the groundwork for how property, debts, and other assets are divided. These terms affect what will go through probate and what will bypass it. For example:
- Equitable Distribution: Florida is an equitable distribution state, meaning marital assets are divided fairly (though not always equally) during divorce. This can significantly alter the assets you hold at the time of your passing.
- Life Insurance Policies: If a life insurance policy was mandated as part of the settlement to support child or spousal support, it could still name your ex-spouse or children as beneficiaries.
If your estate contains jointly titled assets—such as real estate or bank accounts with your ex-spouse—those designations are typically severed upon divorce. When they are more complicated assets like businesses, you can continue to share assets post-divorce. In cases like this, complications can arise during probate as heirs or executors attempt to account for these assets.
You should talk to your divorce attorney at C. Alvarez Law for help preventing this issue and an estate planning attorney afterward as well. This way, you can understand how your divorce settlement agreement impacts your estate. This foresight can prevent unintended legal challenges later.
4. Potential Legal Challenges
If you entered a new marriage but failed to update your estate documents, conflicts could arise between your new spouse and children from a prior marriage.
Florida law does provide some protections for surviving spouses, regardless of outdated estate plans, but this can still lead to disputes in court. This is especially true if there are significant assets or a complicated family structure.
The best way to avoid potential challenges is to keep your estate planning documents current and unambiguous. A well-prepared plan is far less likely to be contested in court.
5. The Importance of Updating Estate Planning Documents
Ultimately, the key to protecting your estate from the ripple effects of divorce lies in proactive estate planning. These are the documents you must review and update post-divorce:
- Will: Ensure it reflects your current asset distribution wishes.
- Living Trusts: Amend trust terms to align with your post-divorce intentions.
- Beneficiary Designations: On retirement accounts, life insurance, and other financial products.
- Healthcare and Financial Powers of Attorney: Assign someone you trust—such as an adult child or sibling—instead of your ex-spouse.
By aligning your estate plan with your new post-divorce realities, you can simplify the probate process and provide peace of mind to your loved ones.
Common Solutions
The problem that most people face is that they want to take care of all of their children and their current spouse. To achieve this, people meet with an attorney and divide their estate amongst designated beneficiaries.
Your attorney can draft a will stating which assets go to which beneficiaries. When done correctly, a will prevents your estate’s assets from being distributed based on intestate laws. Your attorney can also advise you on how to give your assets to specific beneficiaries while you are still alive.
The other option is to create a trust. Though there are different types of trusts, they are all entities that own the assets you place into them. There are a multitude of options available to you. Here are two examples:
- After you create a trust, a trustee can give your assets to your previously chosen beneficiaries.
- After you pass away, your current spouse can have an interest in the trust during their lifetime. When they pass away, your children own the remaining assets.
Lastly, you can opt to employ all of these techniques. Your estate plan is not a piece of paper; it is a collection of documents specifically chosen by your attorney to carry out your wishes.
Contact the Divorce Attorneys at C. Alvarez Law for a Future-Proof Divorce Agreement
C. Alvarez Law is accustomed to assisting our clients with planning for the future. If you have further questions regarding Last Will & Testaments or trusts, contact us to schedule your consultation. We are compassionate and committed to being the resolution to some of your most complex challenges.
C. Alvarez Law
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