1 | A bill to be entitled |
2 | An act relating to effect of dissolution or annulment |
3 | of marriage on certain designations; creating s. |
4 | 732.703, F.S.; providing definitions; providing that a |
5 | designation made by or on behalf of a decedent |
6 | providing for the payment or transfer at death of an |
7 | interest in an asset to or for the benefit of the |
8 | decedent's former spouse shall become void if the |
9 | decedent's marriage was judicially dissolved or |
10 | declared invalid before the decedent's death, if the |
11 | designation was made prior to the dissolution or |
12 | order; providing for disposition of assets; providing |
13 | for treatment of certain retirement plans; specifying |
14 | assets subject to provisions; providing exceptions; |
15 | providing that payors are not liable for payments or |
16 | transfers to beneficiaries contrary to this provision |
17 | in certain circumstances; specifying the form of an |
18 | affidavit that may be used to relieve a payor of |
19 | liability for a transfer if the death certificate is |
20 | silent as to the decedent's marital status at the time |
21 | of death; providing that the payor is not liable for |
22 | making any payment on account of, or transferring any |
23 | interest in, certain types of assets to a beneficiary; |
24 | providing that certain provisions apply |
25 | notwithstanding the payor's knowledge that the person |
26 | to whom the asset is transferred is different from the |
27 | person who would own the interest due to the |
28 | dissolution of the decedent's marriage or declaration |
29 | of the marriage's validity before the decedent's |
30 | death; providing that the provisions do not affect |
31 | specified interests and rights; creating ss. 765.2021 |
32 | and 765.3031, F.S.; providing that a spouse's |
33 | authority as a health care surrogate or a surrogate |
34 | under a living will, respectively, terminates upon the |
35 | dissolution or annulment of the marriage, unless the |
36 | document or the final judgment of dissolution provides |
37 | otherwise; providing for the administration of the |
38 | declaration of health care surrogacy or living will |
39 | after the dissolution or annulment; providing |
40 | applicability; providing an effective date. |
41 |
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42 | Be It Enacted by the Legislature of the State of Florida: |
43 |
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44 | Section 1. Section 732.703, Florida Statutes, is created |
45 | to read: |
46 | 732.703 Effect of divorce, dissolution, or invalidity of |
47 | marriage on disposition of certain assets at death.- |
48 | (1) As used in this section, unless the context requires |
49 | otherwise, the term: |
50 | (a) "Asset," when not modified by other words or phrases, |
51 | means an asset described in subsection (3). |
52 | (b) "Beneficiary" means any person designated in a |
53 | governing instrument to receive an interest in an asset upon the |
54 | death of the decedent. |
55 | (c) "Death certificate" means a certified copy of a death |
56 | certificate issued by an official or agency for the place where |
57 | the decedent's death occurred. |
58 | (d) "Employee benefit plan" means any funded or unfunded |
59 | plan, program, or fund established by an employer to provide an |
60 | employee's beneficiaries with benefits that may be payable on |
61 | the employee's death. |
62 | (e) "Governing instrument" means any writing or contract |
63 | governing the disposition of all or any part of an asset upon |
64 | the death of the decedent. |
65 | (f) "Payor" means any person obligated to make payment of |
66 | the decedent's interest in an asset upon the death of the |
67 | decedent, and any other person who is in control or possession |
68 | of an asset. |
69 | (g) "Primary beneficiary" means a beneficiary designated |
70 | under the governing instrument to receive an interest in an |
71 | asset upon the death of the decedent who is not a secondary |
72 | beneficiary. A person who receives an interest in the asset upon |
73 | the death of the decedent due to the death of another |
74 | beneficiary prior to the decedent's death is also a primary |
75 | beneficiary. |
76 | (h) "Secondary beneficiary" means a beneficiary designated |
77 | under the governing instrument who will receive an interest in |
78 | an asset if the designation of the primary beneficiary is |
79 | revoked or otherwise cannot be given effect. |
80 | (2) A designation made by or on behalf of the decedent |
81 | providing for the payment or transfer at death of an interest in |
82 | an asset to or for the benefit of the decedent's former spouse |
83 | is void as of the time the decedent's marriage was judicially |
84 | dissolved or declared invalid by court order prior to the |
85 | decedent's death, if the designation was made prior to the |
86 | dissolution or court order. The decedent's interest in the asset |
87 | shall pass as if the decedent's former spouse predeceased the |
88 | decedent. An individual retirement account described in s. 408 |
89 | or s. 408A of the Internal Revenue Code of 1986, or an employee |
90 | benefit plan, may not be treated as a trust for purposes of this |
91 | section. |
92 | (3) Subsection (2) applies to the following assets in |
93 | which a resident of this state has an interest at the time of |
94 | the resident's death: |
95 | (a) A life insurance policy, qualified annuity, or other |
96 | similar tax-deferred contract held within an employee benefit |
97 | plan. |
98 | (b) An employee benefit plan. |
99 | (c) An individual retirement account described in s. 408 |
100 | or s. 408A of the Internal Revenue Code of 1986, including an |
101 | individual retirement annuity described in s. 408(b) of the |
102 | Internal Revenue Code of 1986. |
103 | (d) A payable-on-death account. |
104 | (e) A security or other account registered in a transfer- |
105 | on-death form. |
106 | (f) A life insurance policy, annuity, or other similar |
107 | contract that is not held within an employee benefit plan or a |
108 | tax-qualified retirement account. |
109 | (4) Subsection (2) does not apply: |
110 | (a) To the extent that controlling federal law provides |
111 | otherwise; |
112 | (b) If the governing instrument is signed by the decedent, |
113 | or on behalf of the decedent, after the order of dissolution or |
114 | order declaring the marriage invalid and such governing |
115 | instrument expressly provides that benefits will be payable to |
116 | the decedent's former spouse; |
117 | (c) To the extent a will or trust governs the disposition |
118 | of the assets and s. 732.507(2) or s. 736.1005 applies; |
119 | (d) If the order of dissolution or order declaring the |
120 | marriage invalid requires that the decedent acquire or maintain |
121 | the asset for the benefit of a former spouse or children of the |
122 | marriage, payable upon the death of the decedent either outright |
123 | or in trust, only if other assets of the decedent fulfilling |
124 | such a requirement for the benefit of the former spouse or |
125 | children of the marriage do not exist upon the death of the |
126 | decedent; |
127 | (e) If, under the terms of the order of dissolution or |
128 | order declaring the marriage invalid, the decedent could not |
129 | have unilaterally terminated or modified the ownership of the |
130 | asset, or its disposition upon the death of the decedent; |
131 | (f) If the designation of the decedent's former spouse as |
132 | a beneficiary is irrevocable under applicable law; |
133 | (g) If the instrument directing the disposition of the |
134 | asset at death is governed by the laws of a state other than |
135 | this state; |
136 | (h) To an asset held in two or more names as to which the |
137 | death of one coowner vests ownership of the asset in the |
138 | surviving coowner or coowners; or |
139 | (i) If the decedent remarries the person whose interest |
140 | would otherwise have been revoked under this section and the |
141 | decedent and that person are married to one another at the time |
142 | of the decedent's death. |
143 | (5) In the case of an asset described in paragraph (3)(a), |
144 | paragraph (3)(b), or paragraph (3)(c), unless payment or |
145 | transfer would violate a court order directed to, and served as |
146 | required by law on, the payor: |
147 | (a) If the governing instrument does not explicitly |
148 | specify the relationship of the beneficiary to the decedent or |
149 | if the governing instrument explicitly provides that the |
150 | beneficiary is not the decedent's spouse, the payor is not |
151 | liable for making any payment on account of, or transferring any |
152 | interest in, the asset to the beneficiary. |
153 | (b) As to any portion of the asset required by the |
154 | governing instrument to be paid after the decedent's death to a |
155 | primary beneficiary explicitly designated in the governing |
156 | instrument as the decedent's spouse: |
157 | 1. If the death certificate states that the decedent was |
158 | married at the time of his or her death to that spouse, the |
159 | payor is not liable for making a payment on account of, or for |
160 | transferring an interest in, that portion of the asset to such |
161 | primary beneficiary. |
162 | 2. If the death certificate states that the decedent was |
163 | not married at the time of his or her death, or if the death |
164 | certificate states that the decedent was married to a person |
165 | other than the spouse designated as the primary beneficiary at |
166 | the time of his or her death, the payor is not liable for making |
167 | a payment on account of, or for transferring an interest in, |
168 | that portion of the asset to a secondary beneficiary under the |
169 | governing instrument. |
170 | 3. If the death certificate is silent as to the decedent's |
171 | marital status at the time of his or her death, the payor is not |
172 | liable for making a payment on account of, or for transferring |
173 | an interest in, that portion of the asset to the primary |
174 | beneficiary upon delivery to the payor of an affidavit validly |
175 | executed by the primary beneficiary in substantially the |
176 | following form: |
177 |
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178 | STATE OF __________ |
179 | COUNTY OF _____________ |
180 | Before me, the undersigned authority, personally |
181 | appeared ...(type or print affiant's name)... |
182 | ("Affiant"), who swore or affirmed that: |
183 | 1. ...(Type or print name of decedent)... |
184 | ("Decedent") died on ...(type or print the date of the |
185 | Decedent's death).... |
186 | 2. Affiant is a "primary beneficiary" as that |
187 | term is defined in Section 732.703, Florida Statutes. |
188 | Affiant and Decedent were married on ...(type or print |
189 | the date of marriage )..., and were legally married to |
190 | one another on the date of the Decedent's death. |
191 |
|
192 | ________________________________ |
193 | ...( Affiant)... |
194 | Sworn to or affirmed before me by the affiant who |
195 | is personally known to me or who has produced |
196 | ...(state type of identification)... as identification |
197 | this .... day of ...(month)..., ...(year).... |
198 | ...(Signature of Officer)... |
199 | ...(Print, Type, or Stamp Commissioned name of Notary |
200 | Public)... |
201 |
|
202 | 4. If the death certificate is silent as to the decedent's |
203 | marital status at the time of his or her death, the payor is not |
204 | liable for making a payment on account of, or for transferring |
205 | an interest in, that portion of the asset to the secondary |
206 | beneficiary upon delivery to the payor of an affidavit validly |
207 | executed by the secondary beneficiary affidavit in substantially |
208 | the following form: |
209 |
|
210 | STATE OF __________ |
211 | COUNTY OF _____________ |
212 | Before me, the undersigned authority, personally |
213 | appeared ...(type or print affiant's name)... |
214 | ("Affiant"), who swore or affirmed that: |
215 | 1. ...(Type or print name of decedent)... |
216 | ("Decedent") died on ...(type or print the date of the |
217 | Decedent's death).... |
218 | 2. Affiant is a "secondary beneficiary" as that |
219 | term is defined in Section 732.703, Florida Statutes. |
220 | On the date of the Decedent's death, the Decedent was |
221 | not legally married to the spouse designated as the |
222 | "primary beneficiary" as that term is defined in |
223 | Section 732.703, Florida Statutes. |
224 | Sworn to or affirmed before me by the affiant who |
225 | is personally known to me or who has produced |
226 | ...(state type of identification)... as identification |
227 | this .... day of ...(month)..., ...(year).... |
228 | ...(Signature of Officer)... |
229 | ...(Print, Type, or Stamp Commissioned name of Notary |
230 | Public)... |
231 |
|
232 | (6) In the case of an asset described in paragraph (3)(d), |
233 | paragraph (3)(e), or paragraph (3)(f), the payor is not liable |
234 | for making any payment on account of, or transferring any |
235 | interest in, the asset to any beneficiary. |
236 | (7) Subsections (5) and (6) apply notwithstanding the |
237 | payor's knowledge that the person to whom the asset is |
238 | transferred is different from the person who would own the |
239 | interest pursuant to subsection (2). |
240 | (8) This section does not affect the ownership of an |
241 | interest in an asset as between the former spouse and any other |
242 | person entitled to such interest by operation of this section, |
243 | the rights of any purchaser for value of any such interest, the |
244 | rights of any creditor of the former spouse or any other person |
245 | entitled to such interest, or the rights and duties of any |
246 | insurance company, financial institution, trustee, |
247 | administrator, or other third party. |
248 | (9) This section applies to all designations made by or on |
249 | behalf of decedents dying on or after July 1, 2012, regardless |
250 | of when the designation was made. |
251 | Section 2. Section 765.2021, Florida Statutes, is created |
252 | to read: |
253 | 765.2021 Termination of authority upon dissolution of |
254 | marriage.- |
255 | (1) Upon the dissolution or annulment of a marriage, a |
256 | former spouse's authority as a health care surrogate terminates |
257 | upon the dissolution or annulment of the marriage, unless the |
258 | document or the final judgment of dissolution or annulment |
259 | provides otherwise. After the dissolution or annulment, the |
260 | document designating a health care surrogate shall be |
261 | administered as if the former spouse predeceased the other |
262 | spouse and is therefore unable to perform his or her duties. The |
263 | remainder of the document shall be unaffected. |
264 | (2) This section applies to all final judgments of |
265 | dissolution or annulment entered on or after July 1, 2012. |
266 | Section 3. Section 765.3031, Florida Statutes, is created |
267 | to read: |
268 | 765.3031 Termination of authority upon dissolution of |
269 | marriage.- |
270 | (1) Upon the dissolution or annulment of a marriage, a |
271 | former spouse's authority as a surrogate for the other spouse |
272 | under a living will terminates upon the dissolution or annulment |
273 | of the marriage, unless the document or the final judgment of |
274 | dissolution or annulment provides otherwise. After the |
275 | dissolution or annulment, the living will shall be administered |
276 | as if the former spouse predeceased the other spouse, and the |
277 | remainder of the document shall be unaffected. |
278 | (2) This section applies to all final judgments of |
279 | dissolution or annulment entered on or after July 1, 2012. |
280 | Section 4. This act shall take effect July 1, 2012. |