Talking to your parents about their final wishes can be anxiety-inducing. When your parents are divorced, you may have to have that difficult conversation twice. But having open and frank discussions with your parents can help avoid stress and uncertainty down the road. You can take some proactive steps to help them, and yourself prepare.
Estate Planning Questions to Ask
You’ll need to learn more about a few areas of their lives—many of which are areas we tend to keep private. Nonetheless, getting a handle on these things is essential for ensuring your parents can age securely.
First, start asking about their finances to assess whether they have enough to live on in the future. Also, find out if they have a durable power of attorney naming someone to handle their financial decisions if they can’t.
You may need to start asking about any medical issues they make be experiencing as they begin to age. And find out if they have a health care power of attorney appointing someone to make medical decisions if they are incapacitated.
Lastly, find out how they want to age. What happens if they need full-time care? Do your parents plan to age-in-place at home or a senior living facility? Are they expecting to move in with you and your family? You’ll also want to find out their wishes when they have a terminal or end-stage illness.
Update Estate Planning Documents
There are a few essential estate planning documents that both of your parents should have in order. If they had these when they were married, they might need to update them.
If one parent is still listed in the other’s will, that will may no longer be valid. Divorce effectively removes a person’s ex-spouse from their will in Florida. Florida Statute section 732.507(2) states the following: “Any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage unless the will or the dissolution or divorce judgment expressly provides otherwise.” Although Florida law contains provisions addressing the effect of divorce on a will, it is always best to be proactive in this area by reviewing and updating estate plans following a divorce.
If your parents remarried, they must update their estate planning documents. In Florida, if a spouse dies and there isn’t a valid estate plan in place, the surviving spouse typically has the right to inherit the entire estate of his spouse. However, the situation is different for blended families. Florida law dictates that half goes to the spouse and the other half is divided among the biological children.
They may also need to check all assets with a named beneficiary (life insurance policies, employer retirement plans, individual retirement accounts, annuities, health savings accounts, investment accounts, bank accounts, etc.). Upon their death, these assets will be paid directly to the person listed as a beneficiary. When your parents were married, they probably named their spouse the beneficiary. They will need to change that unless they agreed otherwise in their divorce agreement. That said, Florida Statute 732.703 specifically lists some assets or accounts where an ex-spouse’s interest is nullified the following divorce automatically:
- Life insurance policy, qualified annuity, or other tax-deferred contract held within an employee benefit plan.
- Employee benefit plan.
- Individual retirement account (IRA) described in s. 408 or s. 408A of the Internal Revenue Code of 1986.
- A payable-on-death (POD) account.
- A security or other account registered in a transfer-on-death (TOD) form.
- Life insurance policy, annuity, or other similar contract held that is not held within an employee benefit plan or tax-qualified retirement account.
Divorce rights in Florida are complicated and legal assistance is often necessary to ensure that your assets remain protected. To ensure that your parents’ assets go exactly where they want them to, you’ll need to be sure they have up-to-date estate plans that reflect their family and their wishes. Mortellaro Law, located in Tampa, Florida, has the experience you and they need to be certain their wishes are met. Call our team of estate planning lawyers at 813-367-1500 to learn more about us and find out if we’re the right fit for your estate planning needs.
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