How Does My Pending Divorce Affect What Happens To My Assets At Death?

Florida has the 7th highest divorce rate in the country with over 50,000 couples filing for divorce each year and more than 15% of the State’s population divorced or separated. The emotional turmoil of dividing assets, resolving timesharing with children, and determining alimony payments is perhaps one of the most stressful life events a person can undergo. Many times a person going through a divorce does not even think about what their soon-to-be ex-spouse is entitled to under the law in the event one spouse should die. Take a breath, it is more than you think!

Under Florida law, a surviving spouse is entitled to a significant number of automatic spousal rights. These rights are granted to a surviving spouse whether you are married for 5 minutes, 50 years, or one month away from a final hearing of divorce. Let’s review what these rights are:


A surviving spouse is entitled to either a ½ ownership interest in a spouse’s homestead real property or may elect to take a life estate in the real property. A life estate allows the surviving spouse to retain a possessory interest in the residence for their life. They may rent it or live there but the life tenant is responsible for the taxes, insurance, and general care and maintenance of the property.


A surviving spouse is entitled to receive up to $18,000.00 for an award of Family Allowance. This allowance is exactly that, an allowance. It is a court-ordered payment available to a surviving spouse or to children who were receiving support from the parent who died. The purpose of the payment is to support the spouse during the administration of the estate. It can be paid in one lump sum or overpayments. Interestingly enough, Florida law does not require a spouse to prove need.


A surviving spouse is entitled to receive furniture, furnishings, and appliances located in the deceased spouse’s residence for a value up to $20,000.00 without any valid creditor of the deceased spouse making a claim against it. In addition, the surviving spouse is entitled to two automobiles regularly driven by the decedent free from any creditors making a claim against the vehicles.


Is a right established under Florida law in which a surviving spouse may make an election to receive up to thirty (30) percent of the deceased spouse’s elective estate? This election is time-sensitive and must be made no later than 90 days after the date of death. When the amount of elective share is calculated, it includes a large range of assets including those titled as beneficiary or jointly titled.


The first step is to meet with an estate-planning attorney so that you can identify the best way to protect your assets and plan for your wishes while the divorce is pending. A common concern for many people who are in the middle of a divorce is not to have their soon-to-be-ex be in a position to make legal, health, or financial decisions for them in the event, they can not speak for themselves.

This is very important to consider as, under Florida law, a spouse is given preference for many areas of decision making when the other spouse is not able to make express their own wishes. Florida law does allow you to name a person or persons you select who can make decisions for you pertaining to health care, financial, legal, or end of life when you are not able to make your own decisions. In the cases of a pending dissolution of marriage, it is important to consider if you want your spouse to remain in the position of the default decision-maker and if not, take the steps to execute legal documents in which you name who is your decision-maker.

Finally to best protect your legacy, consider the use of an elective share trust while the divorce is pending. This special type of trust allows you to greatly restrict the number of assets available to a surviving spouse. Upon the entry of a dissolution of marriage by the Court, the need for the elective share trust is gone. However, as some dissolution actions can be over a period of years, the use of the elective share trust reduces the risk for your estate beneficiaries.

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