A presumably basic question, like “who’s a beneficiary?” can be the source of costly – yet avoidable – litigation. First, the testamentary document should explicitly define the client’s “children,” taking into account if any children are being disinherited and also the possibility of later-born children, adopted children and illegitimate children. For example:
Family. I am married to WIFE, who is referred to as “my wife” in this Will. My wife and I are both citizens of the United States. My wife and I have three children, SON#1, SON#2 and DAUGHTER. References to “my children” mean my children named above, as well as any other children of mine born or adopted after the execution of this Will; except SON#1, whom I expressly exclude from any provision of this Will and who is to receive no benefit under it; references to “my descendants” mean my children named above (except SON#1) and their descendants, but not the descendants of SON#1, whom I expressly exclude from any provision of this Will and who are to receive no benefit under it.
Effect of Adoption. A legally adopted child (and any descendants of that child) will be regarded as a descendant of the adopting parent only if the petition for adoption was filed with the court before the child’s thirteenth birthday. If the legal relationship between a parent and child is terminated by a court while the parent is alive, that child and that child’s descendants will not be regarded as descendants of that parent. If a parent dies and the legal relationship with that deceased parent’s child had not been terminated before that parent’s death, the deceased parent’s child and that child’s descendants will continue to be regarded as descendants of the deceased parent even if the child is later adopted by another person.
Infant in Gestation. For all purposes of this Will, an infant in gestation who is later born alive will be deemed to be in being during the period of gestation for the purpose of qualifying the infant, after it is born, as a beneficiary of this Will.
What if the definition of “family” changes due to divorce? Florida has two statutes that treat a spouse as being predeceased for purposes of a will (F.S. §732.507(2)) and a revocable trust (F.S. §737.106) executed prior to the dissolution of marriage. Note, however, that while a divorce is pending the surviving spouse still has homestead, elective share and exempt property rights under Florida law. Moreover, non-probate assets, such as insurance policies, IRAs, and pension plan benefits are governed by their beneficiary designation forms – not the subsequent divorce of the named beneficiary (see here). Bottom line, no amount of drafting will address all issues for a divorcing client. All estate planning documents should be reviewed and appropriately revised as soon as divorce proceedings are commenced.
But what about divorce not involving the client and his or her spouse directly? For example, what about divorce at the next generational level? The following sample clause addresses this issue within the context of a trust agreement:
Marital Relationships. The following rules apply to each person who is a beneficiary or a permissible appointee under this Trust Agreement and who is married to a descendant of mine. Such a person will cease to be a beneficiary and will be excluded from the class of permissible appointees upon: (a) the legal termination of the marriage to my descendant (whether before or after my death), or (b) the death of my descendant if a dissolution of marriage proceeding was pending when he or she died. The Trust will be administered as if that person had died upon the happening of the terminating event described above. If that person is not disqualified as provided above, he or she will remain a beneficiary (or permissible appointee), even if that person remarries after the death of my descendant.