Updating Your Estate Plan After Divorce, Marriage, or a Move to Florida

Updating your estate plan after divorce, marriage, or a move to Florida means revising your will, trust, durable power of attorney, health care surrogate, and beneficiary designations so they reflect your new family situation and comply with Florida law. Each of these life events can quietly invalidate parts of an old plan or trigger automatic legal changes you never intended. The safest approach is to treat any one of them as a trigger to review everything within 90 days, before a gap in your documents becomes someone else’s problem.

I have sat across the table from too many Miami families who learned this the hard way. The widow whose late husband’s ex-wife was still listed on his life insurance. The snowbird who assumed his thirty-year-old New York will “just worked” in Florida. The new bride who didn’t realize Florida’s homestead rules quietly rewrote what she could leave to her own children. None of these people were careless. They simply assumed that a major life change and the documents governing their death would somehow sync up on their own. They don’t.

Why Major Life Events Break an Otherwise Good Estate Plan

An estate plan is a snapshot of your life and your wishes on a particular day. Marriage, divorce, and relocation each take a sledgehammer to the assumptions baked into that snapshot. The people you trust change. The assets you own change. And critically, the law governing your documents may change the moment you sign a deed on a Florida home or file a divorce petition.

There are really two ways an old plan fails. First, it can become factually wrong, naming people who no longer belong in your life. Second, and more dangerous, it can become legally non-conforming, meaning a document drafted under another state’s rules no longer does what you think it does once Florida law applies. Both failures are silent. You will never get a warning letter. The problem only surfaces in probate court, when it is too late and far more expensive to fix.

Updating Your Estate Plan After Divorce

Divorce is the event that catches the most people off guard, partly because Florida law does some of the work for you, and people assume it does all of it.

What Florida law revokes automatically

Under Florida Statutes section 732.507(2), any provision of your will that benefits your former spouse becomes void on the day your marriage is dissolved. The will is read as though your ex-spouse died before you. A parallel rule in section 732.703 applies to many non-probate assets, voiding a former spouse’s designation as beneficiary on accounts and policies governed by Florida law. Revocable trusts get similar treatment under section 736.1105.

This sounds reassuring, and it is, up to a point. But these statutes have real limits that trap unwary spouses:

• Federal law often overrides Florida law. Employer-sponsored retirement plans and pensions governed by ERISA, plus federal employee benefits, follow the named beneficiary regardless of your divorce. The U.S. Supreme Court confirmed this in Egelhoff v. Egelhoff and Kennedy v. Plan Administrator. If your ERISA 401(k) still names your ex, your ex still inherits it.
• The statute only revokes; it does not appoint. If your will left everything to your spouse with no alternate beneficiary, revoking that gift can drop your estate into intestacy, where the state’s default rules decide who inherits.
• It does nothing about fiduciary roles in practice. Do you really want your ex-spouse remaining as your health care surrogate or agent under a power of attorney during the months your divorce is pending? The statutes do not erase those roles cleanly, and the gap can be dangerous.

What you actually need to do

Do not rely on the automatic revocation statutes as your estate plan. Treat them as a safety net under a trapeze you are still expected to climb. After a divorce, you should execute a new will or amend your trust, sign new powers of attorney and a new health care surrogate, and personally re-file beneficiary designations on every account, especially retirement plans where federal law controls. If you have minor children, revisit your guardianship nomination too.

One more point that matters for Miami retirees: if you are in the middle of a divorce, you are still legally married, and your soon-to-be-ex retains spousal rights, including Florida’s elective share, until the judgment is final. Update your interim documents now and finalize the rest once the decree is entered.

Updating Your Estate Plan After Marriage or Remarriage

Marriage creates rights you cannot fully write out of your plan, which is exactly why it deserves a fresh look, particularly in blended families and second marriages later in life.

The pretermitted spouse and the elective share

If you sign a will and then marry, Florida’s pretermitted spouse statute (section 732.301) generally entitles your new spouse to an intestate share of your estate, as if you had no will, unless the will provided for the spouse or made clear the omission was intentional. So the will you wrote before the wedding may be partly overridden by a spouse you “forgot” to mention.

Beyond that, Florida guarantees a surviving spouse an elective share equal to 30% of the elective estate under section 732.201 and following. The elective estate is broad. It reaches well past your probate assets into trusts, certain joint accounts, and other transfers. You cannot simply disinherit a spouse in Florida by leaving everything to your children; the law lets the spouse claim that 30% slice unless they waived it.

Tools that protect a second marriage

For retirees who remarry, the central tension is providing for a new spouse while preserving an inheritance for children from a prior marriage. A few structures do this well:

1. A QTIP or marital trust that supports your surviving spouse for life, then passes the remainder to your children, keeping you in control of the ultimate destination.
2. A prenuptial or postnuptial agreement with a valid waiver of the elective share and homestead rights, executed with proper financial disclosure.
3. Lifetime planning vehicles for specific assets, such as the used to keep a home in the family while securing the right to live there. The Florida analog, the enhanced life estate or “Lady Bird” deed, is a workhorse here.

If part of your wealth or family is still tied to New York, coordination matters. A New York estate planning attorney can structure income-focused tools like a for Medicaid and benefit planning, which should be aligned with whatever Florida documents you put in place so the two states’ plans do not contradict each other.

Updating Your Estate Plan After a Move to Florida

This is the one that should be mandatory for every snowbird who decides to make Florida home. An out-of-state will is usually still valid in Florida, but valid is not the same as effective, and several Florida-specific rules can derail a plan that worked perfectly up north.

Self-proving wills and out-of-state formalities

Florida recognizes a will validly executed in another state, but two traps wait for the unwary. First, a will that was holographic (handwritten, unwitnessed) or oral may not be honored here even if your former state allowed it, because section 732.502 requires two witnesses. Second, if your will is not “self-proved” under section 732.503 with the correct Florida-style notarized affidavit, your personal representative may have to track down your original witnesses to prove it, years later and possibly across the country. Re-executing a clean, self-proved Florida will eliminates that headache.

The personal representative residency rule

Florida is unusually strict about who may serve as your executor, called a personal representative here. Under section 733.304, a non-relative who lives out of state generally cannot serve. Your trusted New Jersey neighbor or your accountant in Ohio is disqualified unless they are a close relative as defined by statute. Many transplants discover that the person they named to handle their estate is legally ineligible in Florida, leaving a gap that defaults to someone they never chose.

Homestead: Florida’s most powerful and most misunderstood rule

If you take one thing from this article, take this. Florida’s constitutional homestead protection (Article X, section 4) shields your primary residence from most creditors, but it also restricts how you can leave it. If you are survived by a spouse or a minor child, you generally cannot devise your homestead freely. Section 732.4015 and related law dictate where it goes, and a will provision that conflicts is simply ignored. A surviving spouse, for example, may receive a life estate with a remainder to your descendants, or may elect a one-half tenancy in common instead.

For a remarried snowbird trying to leave the condo to children from a first marriage while a new spouse is alive, this rule can blow up the entire plan. Homestead has to be solved deliberately, often with deeds, waivers, or trust planning, not assumed away.

Powers of attorney and health care documents

Your out-of-state durable power of attorney may be honored in Florida, but Florida banks and title companies are notoriously skeptical of unfamiliar forms. Florida’s power of attorney act (Chapter 709) requires powers to be exercised in a specific way, and many institutions will balk at an out-of-state document. Likewise, you want a Florida health care surrogate designation and living will under Chapter 765 that local hospitals will accept without argument during an emergency. Replacing these is inexpensive and spares your family a fight at the worst possible moment.

A Practical Checklist for Reviewing Your Plan

Whenever divorce, marriage, or a Florida move enters the picture, walk through this list rather than fixing one document in isolation:

• Will and any codicils, re-executed as a self-proved Florida will
• Revocable living trust and its funding (are Florida assets titled into it?)
• Durable power of attorney under Florida Chapter 709
• Health care surrogate and living will under Florida Chapter 765
• Beneficiary designations on retirement accounts, life insurance, and annuities, checked individually
• Personal representative and successor trustee choices, confirmed eligible under Florida law
• Guardianship nominations for any minor children
• Homestead and real estate deeds, including any Lady Bird or life estate deed
• Coordination with planning in any other state where you still own property

Most clients are surprised by how quickly this can be cleaned up once it is approached systematically. The cost of a thorough update is trivial next to the cost of a contested probate or an asset landing with the wrong person.

When to Bring in a Florida Estate Planning Attorney

You should review your plan with a Florida attorney any time you marry, divorce, become widowed, move your domicile to Florida, or buy Florida real estate. Snowbirds shifting their legal residence for tax and asset-protection reasons have an especially strong case for a top-to-bottom review, because that domicile change is exactly what activates Florida’s homestead, elective share, and personal representative rules.

Our firm helps Miami retirees and seasonal residents bring decades-old, out-of-state documents into line with current Florida law, and coordinate with counsel in other states where appropriate. You can learn more about our , read about Florida wills and the Florida probate process, or contact our office to schedule a review. Bring your existing documents; the fastest way to find a gap is to read the plan you already have against the life you are living now.

Frequently Asked Questions

Does getting divorced in Florida automatically remove my ex-spouse from my will?

Largely, yes. Florida Statutes section 732.507(2) voids any provision of your will favoring a former spouse once the divorce is final, reading the will as if your ex died before you. But this does not cover ERISA retirement plans governed by federal law, and it can push assets into intestacy if you named no alternate beneficiary. Sign a new will and re-file your beneficiary designations rather than relying on the statute alone.

Is my out-of-state will still valid after I move to Florida?

Usually it is valid if it was properly executed in your prior state, but it may not be effective. Handwritten or oral wills can fail Florida’s two-witness rule, a non-self-proved will is harder to admit to probate, your named out-of-state non-relative executor may be ineligible under section 733.304, and Florida homestead rules may override your gifts. Re-executing a Florida self-proved will is strongly recommended.

Can I leave my Florida home to my children if I have remarried?

Not always freely. Florida’s constitutional homestead protection restricts how you devise your primary residence when you are survived by a spouse or minor child. A surviving spouse may be entitled to a life estate or a one-half interest regardless of your will. This must be planned deliberately, often through a spousal waiver, a prenuptial agreement, or a properly drafted deed.

What is the elective share, and does it affect my new spouse?

Florida’s elective share gives a surviving spouse the right to claim 30% of the elective estate under section 732.201 and following, even if your will leaves them nothing. The elective estate reaches beyond probate assets into certain trusts and joint accounts. After a marriage, you cannot simply disinherit your spouse unless they have validly waived this right, typically in a prenuptial or postnuptial agreement.

How soon after a major life change should I update my estate plan?

Treat marriage, divorce, widowhood, or a move to Florida as a trigger to review your entire plan within about 90 days. Gaps are silent and only surface in probate, when they are expensive to fix. Review your will, trust, powers of attorney, health care documents, and every beneficiary designation together rather than updating one document in isolation.