Can I Change My Will During Our Divorce?
You may be wondering whether you can change your will while going through a divorce in Florida. The short answer is yes, but there are limits and important considerations to keep in mind. Making changes without understanding the legal consequences could lead to confusion or even unintended results.
What the Law Says in Florida
Florida law allows you to change your will at any time, including while your divorce is still pending. However, if you were to pass away before the divorce is finalized, your spouse is still legally considered your next of kin. That means your spouse may be entitled to a portion of your estate—even if you have updated your will to say otherwise. Unless you have a valid prenuptial agreement that limits those rights, Florida law gives a surviving spouse the right to claim at least 30 percent of your estate. This is called an elective share.
Minor children also have certain rights that cannot be changed through your will. For example, if you try to disinherit your minor child, the court may still allocate assets to support the child. Florida law does not allow you to cut off a minor child’s inheritance entirely, especially if doing so would leave them without basic support. In some cases, a trust can be used to manage assets on a minor child’s behalf, but even then, the court can step in to protect their interests.
Why Timing Matters
Although you are allowed to revise your will before the divorce is final, the timing of those changes can limit their effectiveness. Any changes that attempt to leave your spouse out of the estate plan will not override their legal rights during your marriage, unless you have a written agreement with your spouse providing otherwise. If you want to update your will, it is best to work with an estate planning attorney who can help you understand what is legally possible during this time.
The Role of Prenuptial Agreements
If you have a valid prenuptial agreement, that document may control what your spouse is entitled to receive. In that case, your updated will must still align with the prenuptial terms unless you both formally agree to make changes. Without that agreement, any effort to reduce your spouse’s share will likely fall short during the divorce process.
Start the Planning Process Early
Even though changes to your will may not take full effect until after the divorce is finalized, it is a good idea to begin updating your estate plan as early as possible. These documents can take time to review and revise, especially if you want to protect your children or address long-term goals. Waiting until the divorce is over could delay other decisions that affect your future.
Contact the Law Offices of Robert J Merlin, P.A.
Going through a divorce involves more than just ending a marriage. It often requires you to think about how current decisions will affect your future and the futures of your heirs. At the Law Offices of Robert J. Merlin, we help clients approach divorce with practical guidance and thoughtful planning. Contact us today at (305) 448-1555 to schedule a consultation.
The Law Offices of Robert J. Merlin, P.A. are located at 250 Catalonia Avenue, Suite 706, Coral Gables, FL 33134.
Bob Merlin is a Florida Bar Board Certified Family Law Specialist, he practices in the areas of divorce, time-sharing of children and parenting plans, child support, alimony, paternity, pre-nuptial and post-nuptial agreements, and cohabitation/partnership agreements.
As an experienced Collaborative attorney, Bob continually hones his skills in the Collaborative Process and trains other professionals how to become a Collaborative professional as he is.
“My goal is to help divorcing and other family law clients make well-informed decisions so they experience a more efficient process and feel more in control over their futures.”
