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How does divorce factor into the probate process?

Grey divorce, or dissolving a marriage after the age of 50, is becoming a common thing now in our country. It's a fact we've brought up before on our blog, as some of our more frequent readers already know. But it's also one we feel our readers should be aware of. That's because grey divorce can significantly complicate situations, especially when you consider its affect on a couple's estate.

Most people know that as they get older, they should consider drafting a will that will establish which loved ones will receive a portion of the estate and how much. In a majority of cases, spouses name each other as beneficiaries, then their children and so on through their list of loved ones. The document then becomes an "out of sight, out of mind" sort of thing, which begs the question: how does divorce factor into the probate process?

The sentiment among a lot of people is that they'd rather limit what their spouse receives in the divorce process, including the contents of their will. But as ยง 732.507 of the Florida Probate Code explains, a divorce voids the provisions of a will that name an ex-spouse as the beneficiary of an estate. Failing to finalize the divorce process could stop this section of the law from triggering though. This means an ex-spouse may still have a claim on their former spouse's estate if by law they are still considered married.

Another way in which divorce can factor into the probate process is when an estate passes into intestate succession, or the process of distributing an estate where no will is present. In such a situation, the law is less clear on the impact of divorce. It's likely though that a judge would consider the same factors as would be considered if there was a will and distribute an estate based on whether the marriage was legally dissolved at the time of death or not.

If you're at all concerned about what will happen to your estate when you divorce then talking to a lawyer should be your next step, particularly one who understands family law as well as the probate process like we do.

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