Is a Will Still Valid After Divorce in Florida?

Yes, divorce can impact your estate plan for children from a prior relationship, and the consequences depend on how your plan is structured.

Florida law automatically changes some estate planning provisions when a marriage dissolves. But other provisions remain intact, and your current spouse’s equitable distribution claims may affect assets you assumed were protected.

What Happens to Your Will When You Divorce in Florida?

Under Florida Statute § 732.507(2), divorce automatically revokes any provision in your will that benefits your former spouse.

After the divorce is final, your will is read as if your former spouse predeceased you.

This means:

• Any bequest to your former spouse is automatically voided
• If your former spouse was named as personal representative (executor), that appointment is revoked
• Provisions benefiting your children from a previous marriage are not affected by the divorce

But here’s the risk: if your will leaves everything to your spouse with the understanding that your spouse would then provide for your children, the divorce eliminates that arrangement.

Your children only inherit what’s specifically left to them in the will, not what you assumed your spouse would pass along.

How Divorce Impacts Revocable Trusts

Florida Statute § 736.1105 applies the same principle to revocable trusts. Upon divorce, any trust provision benefiting your former spouse becomes void. The trust is administered as if your former spouse died on the date of the divorce judgment.

For your children from a previous marriage, the impact depends on your trust’s structure:

• If your children are named directly as beneficiaries: Their interests survive the divorce. The trust continues to benefit them as written.
• If your spouse was the primary beneficiary with your children as remainder beneficiaries: After divorce, the trust skips your former spouse entirely. Your children may receive their inheritance sooner than planned, or successor provisions may apply.
• If trust assets are subject to equitable distribution: Assets you funded the trust with during the marriage may be classified as marital property. Your spouse could claim a share of those assets in the divorce, reducing what’s available for your children.

The Equitable Distribution Threat to Trust Assets

This is where the divorce impact on your estate plan for children gets complicated. Under Florida Statute § 61.075, marital assets are subject to equitable distribution.

If you funded a revocable trust during the marriage with marital earnings or assets, your spouse may argue that those trust assets are marital property.

Revocable trusts don’t create a wall between you and the assets. You still control them, and the court may treat them as part of the marital estate.

This could mean:

• Assets you earmarked for your children get divided as part of the divorce settlement
• Your spouse receives a portion of what you intended for your children
• You need to rebuild the trust after the divorce with fewer resources

Irrevocable trusts offer stronger protection because once assets are transferred, you no longer own or control them.

But irrevocable trusts created during the marriage with marital funds can still face challenges if the timing or funding raises equitable distribution questions.

Beneficiary Designations You Need to Update

Estate plans involve more than wills and trusts. Beneficiary designations on financial accounts often control where significant assets go, and divorce doesn’t automatically update all of them.

Under Florida Statute § 732.703, divorce automatically voids beneficiary designations naming your former spouse on most non-probate assets.

But there’s a critical exception:

• ERISA plans (401(k)s, employer pensions) are governed by federal law, which overrides Florida’s automatic revocation
• Your ex-spouse could still inherit your 401(k) if you don’t affirmatively change the designation after divorce
• Do not assume the law will fix this for you

Review and update these immediately:

• Life insurance policies: If your spouse is the beneficiary, change it to your children or a trust for their benefit.
• Retirement accounts (401(k), IRA, pension): Court injunctions may restrict changes during the pending divorce. After finalization, update immediately. For ERISA-governed plans, Florida’s automatic revocation under § 732.703 does not apply. You must affirmatively change the designation or use a QDRO.
• TOD/POD accounts: Transfer-on-death and payable-on-death designations pass assets outside of probate. If your spouse is listed, change the designation.
• Health care surrogates and powers of attorney: If your spouse holds these roles, designate someone else.

Restrictions on Changing Your Estate Plan During the Divorce

Once a divorce is filed, most Florida circuit courts issue standing temporary injunctions that restrict both parties from making changes without agreement or court order.

These restrictions typically cover:

• Changing beneficiary designations on life insurance or retirement accounts
• Transferring or retitling assets
• Canceling or modifying insurance policies
• Altering any financial arrangements that existed at the time of filing

Work with your attorney to identify which changes you can make now, which require court approval, and which should be addressed in your marital settlement agreement.

Steps to Protect Your Children’s Inheritance During Divorce

• Review your entire estate plan immediately. Identify every document, designation, and account that involves your current spouse or your children from a previous marriage.
• Understand what’s marital vs. nonmarital. Assets you brought into the marriage or inherited individually may be protected from equitable distribution. Assets acquired or funded during the marriage are at risk.
• Address estate planning in your divorce settlement. Your marital settlement agreement can include provisions protecting specific assets for your children, establishing life insurance requirements, or restricting claims to trust assets.
• Create or update your trust after the divorce. Once the divorce is final, restructure your estate plan to reflect your new circumstances. If your existing trust was compromised by equitable distribution, rebuild it with the assets you retained.
• Consider an irrevocable trust for future protection. If you remarry, an irrevocable trust funded before the new marriage can protect your children’s inheritance from future divorce claims.

Protecting Your Estate Plan and Your Children Through Divorce

Divorce doesn’t just end a marriage. It can reshape the financial future you planned for your children. The intersection of family law and estate planning requires careful analysis to make sure your children’s interests survive intact.

Nest Law works with clients who need to protect estate plans and trust assets for children from previous marriages during Florida divorces. We can evaluate your current plan, identify vulnerabilities, and structure protections within your divorce settlement.

Contact Nest Law to schedule a confidential consultation about protecting your children’s inheritance.