Don’t Neglect Estate Planning Needs When Facing Divorce
As a divorce attorney I am constantly confronted by people seeking answers to some of the great mysteries of life. For instance, if you give a kid pop rocks and coke will their head explode? Or, if you swallow a watermelon seed will you grow a watermelon in your stomach? And, of course, did Steve Urkel really need a cloning machine to transform into Stefan Urquelle or was his alter ego inside of him the whole time simply masked by fear and insecurity?! This post, however, will focus on a question that’s posed to me less frequently, despite its subject matter being nearly as important as the inquiries listed above. Que the drum roll..
Why the *%&! should I care about estate planning and beneficiary designations??
Understandably, the summer months in Florida provide little motivation to spark your interest in anything; let alone something as seemingly mundane as a blog post written by a divorce attorney. Your weekly tee time/tennis match will inevitably be rained out, NFL training camp hasn’t started yet which makes Sports Center about as riveting as its new class of anchors (with the exception of increasing the spotlight on Bram Weinstein… love that guy) and you’ve already caught up on every episode of Orange is the New Black and Game of Thrones. Twice. That said, if I still have your attention, I consider it a small victory and urge you to read on. A wise man once told me that it’s all in the details and the details, when considering a division of marital property and divorce in Florida generally, are what can save you from looking like a chump.
Divorce and Estate Planning are Like PB&J
To begin, the portions of a marital settlement agreement or final judgment dealing with the division of marital property cannot be enforced by the court’s contempt power. Because of this, it is extremely important that your divorce attorney attempt to categorize the provision requiring your ex to maintain a life insurance policy; with yours truly as the beneficiary, as a support obligation so the court can lay the smack down in the event of non-compliance. Of course, like everything in life, there are exceptions. For example, a court doesn’t have jurisdiction to order GI Joe or Jane to change their beneficiary on a military group life insurance policy if the beneficiary designation is protected by the Federal Servicemembers Group Life Insurance Act. In the interest of keeping things light, though, let’s keep on keeping on and focus on the bottom line…
An airtight provision protecting your right as named beneficiary is especially important if your prayers are finally answered and your former spouse happens to keel over during a romp in the hay with the (shirtless/permanent kiss face/any trait equally as nauseating) 20-something plastered all over his or her Facebook page. Absent an agreement or final judgment providing who is to receive death benefits or specifying who is to be beneficiary; the court will look no further than the named beneficiary in the actual policy, plan or account. Even general language stating who is to receive ownership of the asset is not specific enough to override the plain language of a beneficiary designation contained in the separate document. Of course, a spouse awarded the policy, plan or account following a division of marital property is free to name any individual they choose as beneficiary; but if your divorce attorney fails to inform you of this critical step, the beneficiary designation contained in the separate document controls and your cash goes to funding a nice new 3 series for your ex’s new squeeze. Yikes.
While we are on the topic of meeting an untimely demise, it’s important to note a relatively new change in probate law. If property is passed through a beneficiary designated asset prior to your trek to Splitsville and no amendment is made to the will, trust, etc. post divorce; a former spouse will be treated as predeceasing his or her former soul mate. This, kids, is just another reason you need to make sure you retain a divorce attorney who is both well versed in the law and who will ensure that your estate planning interests are safeguarded long after the ink on your passport to singledom dries.
In the prolific words of Kenny Maynes, “Yahtzee!”