What is the Legal Effect of a Divorce in Probate?


It takes two to tango and two to get divorced. If a spouse dies, in Florida, prior to a divorce being finalized, the divorce process is said to have died as well. Unless a court has issued a Notice of Entry of Judgment, the divorce proceeding is considered terminated and the surviving spouse will step into the role of a widower.

What is the Legal Effect of a Divorce on a Will or Trust in Florida?

Per Florida law, if no final settlement agreement has been signed by you and your spouse, and one spouse passes away, the probate will move forward as if no divorce action had been filed. This is also true if a marital settlement agreement was signed but no final judgment has been entered by the family court. During a Florida divorce, orders and agreements deemed interlocutory, which are given in an intermediate stage of the divorce process and used to provide some type of decision on an issue by the court will essentially die with the cause of action upon the death of a spouse. For example: if a married couple files for divorce and while the divorce is still pending, the husband passes away, the divorce will be dismissed, and the wife will be in the same position she was prior to the filing for divorce. The wife will still be the beneficiary of her late husband’s estate.

Can I Remove my Spouse as my Beneficiary During a Pending Divorce?

One way to ensure your soon to be ex-spouse will not receive all, or most, of your assets in the event that you pass away while a divorce is still pending, is to change your estate planning documents. By removing your spouse as a beneficiary of your estate, it is possible that he or she may only be entitled to an elective share of your assets. But it is very important to discuss this with an estate planning attorney before proceeding; Florida offers many protections to spouses, one of which is against being completely disinherited.

What is a Suggestion of Death?

Florida Rule of Civil Procedure 1.260(a)(1) requires a surviving spouse to file a suggestion of death in order to inform the Florida courts that the other spouse has passed away. Once the suggestion of death is filed, the judge will dismiss the divorce case.

What Happens Once the Divorce is Dismissed?

Upon dismissal of the divorce, the deceased spouse’s estate will be distributed in accordance with the terms of his or her will. If the deceased spouse did not have a will, then his or her assets will be distributed according to Florida’s intestacy statutes.

What if the Surviving Spouse is a Named Beneficiary to the Deceased Spouse’s Assets?

Under Florida law, a divorce terminates beneficiary designations for life insurance policies, qualified annuity or tax-deferred plans, employee benefit plans, IRAs, payable on death bank accounts, securities registered in a transfer on death form. However, this applies when the judicial dissolution or court order is finalized and entered by the court, not merely pending. It is important to note, if a divorce decree or marital settlement agreement provides otherwise, then these rules will not apply. Further, this statute will not apply if the account is governed by the Employee Retirement Income Security Act of 1974 (ERISA) because federal law will govern.

EPGD Business Law is located in beautiful Coral Gables, West Palm Beach and historic Washington D.C. Call us at (786) 837-6787, or contact us through the website to schedule a consultation.

*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*

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Kathrine Karimi


*The following comments are not intended to be treated as legal advice. The answer to your question is limited to the basic facts presented. Additional details may heavily alter our assessment and change the answer provided. For a more thorough review of your question please contact our office for a consultation.

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