3 Reasons Why You Must Have a Will if You Are Divorced and Remarried in Florida

Divorce is certainly a difficult time for all parties concerned. Remarriage can be even harder when it comes to making a Will. Family units become intertwined with children from former relationships as stepparents take on a new role. This article discusses the issues facing remarried parents in Florida.

There are three main reasons you need a Florida Will and Testament:

1.       Control over who inherits your assets

If you die and do not have a legal Florida Will, your property ends up being distributed in accordance with the Florida intestacy legislation. The law which governs what your spouse receives is contained in section 732.102, title XLII estates and trusts statute.

To illustrate the consequences of this provision applying to a remarried parent, here is an example:

Say A and B (husband and wife) each have children from a former marriage (A1, A2 and B1, B2). They also have a child together (AB). A owns the house where A and B live. A also has savings and investments in his own name valued at $200,000. If A died suddenly, without making a Will, the intestacy legislation would provide for the following distribution:

 

• B can choose to have a life estate in the homestead. If B makes this election, B will not own any part of the property. She will just have a right to reside in the property until her death.
   
• Alternatively, B may choose to share ownership of the homestead with A’s children. If B chooses the part ownership option, B will own one half of the property with A1, A2 and AB having a vested interest in the other half. B may then have to pay rent to A’s children if she chooses to continue to reside in the property;
   
• As to the savings and investments, B would receive the first $60,000 plus half of the balance (totaling $130,000);
  
• A’s children (A1, A2 and AB) would share the other half of the balance ($70,000) equally.
   
• B’s children (B1 and B2) do not inherit.

One must ask whether A would have wanted his estate to be distributed in this manner. Not many people would include such dispositions in their Florida Will.

2.       Being able to choose the Personal Representative

The personal representative is the person appointed to mange the estate and to distribute the assets to the respective beneficiaries. This is usually the executor named in the testator’s Last Will and Testament. Where a person dies without a Will, the order of priority for appointing a personal representative is set forth in section 733.301. The person next in line is “the person selected by a majority in interest of the persons entitled to the estate”, this is usually the spouse (B in the above example).

Under section 733.603, the executor is entitled to settle and distribute the estate without direction of the court. However, there is a potential conflict of interest between B and A’s children from his prior marriage (A1 and A2). Due to this conflict A’s children (or their legal representatives) could ask the court for supervised administration. This would escalate attorney’s fees and make probate more costly than it may need to have been.

If A had made a Will, she could designate B or any other person to the position of executor and also stipulate they act without court supervision.

3.    Choosing a Guardian and Trustee

This is especially important for parents of minor children. The Will is the only legal way of appointing a guardian (someone to rear the children until they reach 18).

In A and B’s situation, B’s children (including their mutual child AB) will remain with their mother, B. What about A’s children from his former marriage? If the children’s biological mother has already died, then B could be chosen by the court as guardian. However, the court may favor the children’s relatives over B if they apply for the role.

Guardianship proceedings can be lengthy, messy and expensive. The lawsuit also takes an emotional toll on all concerned, especially the children. This can be avoided by appointing a guardian in your Florida Will.

Another consideration is the children’s inheritance. Usually, if there is no provision in the Florida Will to stipulate otherwise, the guardian ends up managing the minor’s money until they reach 18. If A1 and A2’s biological mother is still alive, you may not be able to avoid her being appointed as guardian. However you can avoid her from having control over your children’s inheritance by creating a trust in the Will and appointing another person as the trustee.

Not many people realize the consequences of dying without a Will. The Last Will and Testament is a crucial tool for managing what happens after your death. Your actions (or rather inaction) can have a drastic effect on the lives of your loved ones.