A pending divorce can raise an overlooked question: what happens to your assets if you die before the marriage legally ends? Dividing property, resolving timesharing, and discussing support can already feel overwhelming. Estate planning may seem less urgent. However, filing for divorce does not, by itself, remove all rights that Florida law gives a surviving spouse.
The timing of a death can therefore matter. A couple may live apart and be close to a final hearing while still legally married. Existing documents, property ownership, valid waivers, and court orders can also affect the analysis. Before making changes, ask your attorney to review your circumstances and explain which spousal rights may apply.
Homestead Rights During a Pending Divorce
Florida protects a surviving spouse’s interest in homestead property, but the result depends on the family and the title. When the statutory descent rule applies and the deceased owner leaves a spouse and descendants, the spouse receives a life estate. The descendants receive the remainder interest. Instead, the spouse may elect an undivided one-half ownership interest under the statute.
A life estate generally allows the spouse to use the home during life. However, that interest also comes with responsibilities that require careful review. The alternative ownership election has a separate deadline, generally six months after death. Ask counsel to explain the available choices under Florida’s homestead descent statute.
Family Allowance and Exempt Property
Florida law provides a family allowance of up to $18,000 for qualifying survivors during estate administration. It can benefit the surviving spouse and qualifying lineal heirs whom the deceased person supported or had an obligation to support. The court may order a lump sum or periodic payments. The amount and allocation depend on the statutory rules and the circumstances.
Exempt property is a separate protection. It can include household furniture, furnishings, and appliances in the deceased person’s usual home, up to a net value of $20,000. Two qualifying personal vehicles may also fall within the statute. Vehicle ownership, use, and weight requirements apply. This protection does not eliminate perfected security interests, such as an applicable secured loan. Filing deadlines also matter.
The Elective Share and Its Deadline
A surviving spouse may elect a share equal to 30 percent of the elective estate. This estate can include more than assets passing through probate. Certain jointly owned assets and beneficiary arrangements may enter the calculation. As a result, changing a will alone may not determine what the spouse can receive.
The general filing deadline is the earlier of two dates: six months after service of the notice of administration, or two years after death. The statute also addresses extensions and tolling. It is not a general 90-day deadline after death. Have an attorney calculate the deadline for the particular estate under Florida Statutes section 732.2135.
Planning for Decisions and Your Legacy
Meet with an estate planning attorney while the divorce is pending. Explain your wishes for property and for decisions during an illness or incapacity. Many people want to reconsider whom they trust to handle financial, legal, or health care matters. Your attorney can review existing documents and explain how the divorce affects the authority of people you previously named.
Florida allows you to name decision-makers through properly prepared legal documents. However, different documents follow different rules. Discuss your power of attorney, health care surrogate designation, and other relevant instructions together. Also identify backup choices and confirm that those people are willing to serve. A coordinated review can reveal gaps that a change to the will would leave unresolved.
An elective share trust may be one topic for that review. Its terms and statutory valuation can affect how benefits satisfy a spouse’s elective share. It does not automatically erase the spouse’s rights or offer the same result for every family. Ask your attorney whether such a trust fits your situation and how any final divorce judgment would affect the plan.
Preparing for a Pending Divorce Estate Review
Gather your current will, trust, deeds, account statements, and beneficiary forms before the appointment. Include any prenuptial or postnuptial agreement, temporary court orders, and proposed settlement terms. These records help your estate planning and divorce attorneys evaluate the same facts. Also make a list of assets you own together and assets held in only one name.
Next, identify your immediate concerns. For example, you may want to discuss who can communicate with doctors or manage bills if you become ill. Write down the people you would prefer to serve and any practical limits on their availability. Bring questions about existing documents instead of assuming that separation has already changed them.
Coordinating Changes Before and After the Judgment
Do not transfer property or change insurance and account beneficiaries without reviewing the divorce case requirements with counsel. Court orders, agreements, plan rules, and other legal protections may limit what you can change. In addition, an action that appears helpful for estate planning can have consequences in the divorce. Coordination helps you avoid conflicting instructions.
After the final judgment, schedule another review. Confirm that your documents and account records reflect the result you intend, including any obligations created by the settlement. Keep copies of completed updates and tell your attorney about unresolved forms or institutional requirements.
For help organizing these questions, explore Clarie Law’s estate planning services and contact our office. A pending divorce deserves a plan that addresses both current responsibilities and future wishes.
Keep a dated list of the questions you discuss and the tasks that follow. Note which attorney or financial institution will handle each update. Finally, set a reminder to confirm completion, so an unsigned document or unfinished beneficiary form does not remain unnoticed.
