Updating Your Estate Plan After Divorce, Marriage, or a Move to Florida

Updating your estate plan after divorce, marriage, or a move to Florida means revising your will, trust, beneficiary designations, and powers of attorney so they reflect your current family and your new state’s law. Florida treats marriage, divorce, and domicile very differently from New York, New Jersey, and most other states, so documents that were perfectly valid where you used to live can produce results you never intended once you become a Florida resident. The fix is rarely complicated — but it is rarely optional either.

We see this constantly at our West Palm Beach practice. A couple retires from Long Island to Palm Beach Gardens, keeps the house up north for the grandchildren, and assumes the trust they signed in 2009 still does the job. Or someone remarries after a Florida divorce and never removes the ex-spouse from a 401(k) form last touched a decade ago. These are the cracks that turn into probate litigation. Below is a plain-English walkthrough of what actually changes when your life — or your address — changes.

Why a Life Change or a Move to Florida Forces an Estate Plan Review

An estate plan is a snapshot of three things: who you love, what you own, and which state’s rules govern the transfer. Divorce, marriage, and relocation can alter all three at once. A document is only as good as its alignment with current facts and current law, and Florida’s law is genuinely distinct.

Three Florida-specific realities drive most of the updates we recommend:

• Homestead protection and devise restrictions. Article X, Section 4 of the Florida Constitution gives your homestead extraordinary creditor protection — but it also restricts how you can leave the home if you are survived by a spouse or minor child. A clause that worked for your New York co-op can be void as applied to a Florida homestead.
• The elective share. Under Florida Statutes Chapter 732, a surviving spouse can claim 30% of the “elective estate,” a broad pool that reaches well beyond probate assets. Newly married? Your spouse now has rights your old plan never accounted for.
• Automatic revocation on divorce. Florida law treats your ex-spouse as having predeceased you for most planning purposes the moment the divorce is final — which sounds protective until you realize it does not cover everything.

For our out-of-state and dual-state clients, the through-line is this: do not assume your old documents simply travel with you. They cross the state line; their legal effect may not.

Updating Your Estate Plan After Divorce in Florida

Divorce is the change people most often underestimate. They feel “done” once the final judgment is entered, but the estate plan is a separate system that does not update itself.

What Florida law revokes automatically

Florida Statutes section 732.507(2) provides that a dissolution of marriage voids any provision in your will that benefits your former spouse — the will is read as though the ex-spouse died at the time of the divorce. A parallel rule, section 732.703, applies to many beneficiary designations on assets like life insurance and certain accounts governed by Florida law. The same predeceased-spouse treatment also extends to revocable trust provisions favoring an ex under section 736.1105.

So if you forget to update your will after a Florida divorce, the law gives you a partial safety net. Partial is the operative word.

What Florida law does NOT fix for you

The automatic-revocation rules have real gaps, and these are where we see expensive mistakes:

• ERISA-governed retirement plans. Your employer’s 401(k) and pension are federal-law creatures. The U.S. Supreme Court held in Kennedy v. Plan Administrator for DuPont Savings that the plan pays whoever is named on the form — Florida’s revocation statute is preempted. If your ex is still the named beneficiary, your ex may collect.
• Nominated fiduciaries. Did your ex-spouse remain your named personal representative, trustee, health care surrogate, or agent under a power of attorney? Florida revokes the gift but you should affirmatively revoke and re-execute these appointments rather than rely on interpretation.
• Out-of-state assets. If you still own that house up north, the revocation rules of your former state — not Florida’s — may govern how the deed and any local beneficiary designations are read.

The clean approach after divorce is to revoke and replace, not patch. Sign a new will and trust, execute fresh powers of attorney and a health care surrogate designation under Florida Statutes Chapter 765, and re-paper every beneficiary form by hand.

Updating Your Estate Plan After Marriage or Remarriage

Marriage adds a person with statutory rights that can override your written wishes. This is true even if you never change a single document.

The pretermitted spouse and the elective share

If you made a will before the marriage and did not provide for your new spouse (and a prenuptial agreement does not waive the right), Florida’s pretermitted-spouse statute, section 732.301, may give that spouse an intestate share — often a large one — carved out of your estate. Separately, Chapter 732’s elective share lets a surviving spouse claim 30% of the elective estate regardless of what your will says. You cannot fully disinherit a Florida spouse without a valid waiver.

Homestead devise after you marry

This trips up second marriages constantly. Once you are married and the property is your Florida homestead, you generally cannot leave the home outright to your children (or anyone else) by will if your spouse survives you. Instead, the spouse receives a life estate with a remainder to your descendants — or, under section 732.401, the spouse may elect a 50% tenancy-in-common interest. If your plan was to pass the house to your kids from a prior marriage, you must structure that deliberately, often through a qualified pre-marital agreement or a properly drafted life-estate/trust arrangement.

Blended families need intentional planning

Remarriage with children from a prior relationship is the single most litigated scenario we handle. A few priorities:

1. Update beneficiary designations on retirement accounts and life insurance to reflect your current intent — naming the spouse, the children, or a trust, as you choose.
2. Consider a marital trust (QTIP) so your spouse is provided for during life while your children remain the ultimate beneficiaries.
3. Address a child or beneficiary with a disability through a properly drafted so that an inheritance does not disqualify them from means-tested benefits like Medicaid or SSI — the same planning logic applies whether the beneficiary lives in Florida or New York.
4. Use a prenuptial or postnuptial agreement to waive elective-share and homestead rights where the family agrees to a different arrangement.

Updating Your Estate Plan After Moving to Florida

A valid out-of-state will is generally honored in Florida — section 732.502 recognizes wills properly executed under the law of the place where they were signed. So your old will probably is not void. But “recognized” is a low bar, and several practical problems push hard toward re-executing once you establish Florida domicile.

Holographic and oral wills will not work here

Florida does not honor handwritten (holographic) wills that lack proper witnesses, nor oral (nuncupative) wills — even if your prior state allowed them. Section 732.502 sets strict witnessing and execution requirements. If your existing document only met a more relaxed home-state standard, it may fail in a Florida probate court.

Self-proving affidavits and out-of-state witnesses

A Florida self-proving affidavit (section 732.503) lets your will be admitted to probate without tracking down witnesses years later. Wills signed elsewhere often lack a Florida-compliant affidavit, which means your personal representative may have to locate aging out-of-state witnesses — a needless burden. Re-executing in Florida solves it.

Trustee, agent, and surrogate provisions should be Florida-friendly

Florida powers of attorney (Chapter 709) and health care surrogate designations (Chapter 765) have specific formalities, and Florida banks and hospitals are far more comfortable honoring documents that plainly track Florida statutes. An out-of-state durable power of attorney may be technically valid yet routinely questioned at the teller window when you need it most.

Dual-state residents and ancillary probate

This is the heart of our practice. If you keep real estate in another state — a New York co-op, a New Jersey shore house — that property does not pass under Florida probate. It triggers ancillary probate in the other state, a second court proceeding running parallel to the Florida one. The most reliable way to avoid two probates is to hold out-of-state real property in a revocable living trust. For clients who still maintain meaningful New York ties, coordinating Florida documents with a New York and trust structure prevents the two plans from contradicting each other. Our colleagues at regularly handle these cross-border coordinations alongside the New York office.

A Practical Checklist for Any Major Life Change

Whatever the trigger — divorce, marriage, or a move across state lines — work through the same core inventory. You can start gathering these before you ever sit down with an attorney:

• Will and codicils — confirm the beneficiaries, the personal representative, and Florida-compliant execution.
• Revocable living trust — verify the trustees, successor trustees, and that out-of-state real estate is actually funded into it.
• Beneficiary designations — 401(k), IRA, pension, life insurance, annuities, transfer-on-death accounts. These pass outside the will and override it.
• Durable power of attorney — re-execute under Florida Chapter 709.
• Health care surrogate and living will — re-execute under Florida Chapter 765.
• Homestead and deeds — review titling in light of marriage, divorce, and Florida’s devise restrictions.
• Guardianship nominations for minor children, if your family has grown.

For a deeper look at the document itself, see our overview of Florida wills, and if you are facing a court proceeding, our guide to Florida probate explains what your family can expect.

Common Mistakes We See

A short list of the errors that cause the most damage:

• Assuming divorce “took care of” the ex on the 401(k). It did not — ERISA preempts Florida’s revocation statute.
• Leaving the homestead to children while a spouse survives. The devise is restricted; the result is often the opposite of what was written.
• Relying on an out-of-state will with no Florida self-proving affidavit. Admissible, eventually — at the cost of delay and expense.
• Holding the northern house in your own name. That choice quietly guarantees a second probate in the other state.
• Treating beneficiary forms as paperwork. They are dispositive documents that beat your will every time.

When to Call a Florida Estate Planning Attorney

If you have recently divorced, married, or moved to Palm Beach County — or you are a dual-state resident with property in more than one state — a focused review is worth the modest cost. Most updates are straightforward once a qualified attorney maps your assets against Florida law. The expensive path is the one where nobody looked until after a death. Reach out through our contact page to schedule a review of your existing documents.

Frequently Asked Questions

Does getting divorced in Florida automatically remove my ex-spouse from my will?

Largely, yes. Florida Statutes section 732.507(2) voids provisions in your will that benefit a former spouse, reading the will as though the ex predeceased you, and similar rules apply to many trusts and Florida-governed beneficiary designations. But the protection has gaps — ERISA-governed 401(k) and pension plans are federally preempted and will still pay your named ex, and you should affirmatively revoke any fiduciary roles your ex held. The safest course is to revoke and re-execute new documents.

Is my out-of-state will still valid after I move to Florida?

Usually it remains valid, because Florida (section 732.502) recognizes wills properly executed under the law of the state where they were signed. The exceptions are handwritten (holographic) wills lacking proper witnesses and oral wills, which Florida does not honor. Even a valid out-of-state will often lacks a Florida self-proving affidavit, forcing your representative to locate witnesses later, so re-executing in Florida is strongly recommended.

Can I leave my Florida home to my children if I am married?

Generally no, not outright, if your spouse survives you and the home is your Florida homestead. Under the Florida Constitution and section 732.401, the surviving spouse receives a life estate with the remainder to your descendants, or may elect a 50% tenancy-in-common interest. To pass the home differently, you typically need a valid prenuptial or postnuptial waiver or a carefully drafted trust arrangement.

What rights does a new spouse have if I do not update my estate plan after marriage?

Significant ones. Florida’s pretermitted-spouse statute (section 732.301) can grant an unprovided-for new spouse an intestate share, and Chapter 732’s elective share lets a surviving spouse claim 30% of the broadly defined elective estate regardless of your will. You cannot fully disinherit a Florida spouse without a valid waiver such as a prenuptial agreement.

How do I avoid two probates if I own property in both Florida and another state?

Out-of-state real estate does not pass through Florida probate; it triggers a separate ancillary probate in the state where it sits. The most reliable way to avoid this second proceeding is to hold the out-of-state real property in a revocable living trust, and to coordinate your Florida documents with any will or trust in the other state so the two plans do not conflict.