HB 401

1
A bill to be entitled
2An act relating to effect of dissolution or annulment
3of marriage on certain designations; creating s.
4732.703, F.S.; providing definitions; providing that a
5designation made by or on behalf of a decedent
6providing for the payment or transfer at death of an
7interest in an asset to or for the benefit of the
8decedent's former spouse shall become void if the
9decedent's marriage was judicially dissolved or
10declared invalid before the decedent's death, if the
11designation was made prior to the dissolution or
12order; providing for disposition of assets; providing
13for treatment of certain retirement plans; specifying
14assets subject to provisions; providing exceptions;
15providing that payors are not liable for payments or
16transfers to beneficiaries contrary to this provision
17in certain circumstances; specifying the form of an
18affidavit that may be used to relieve a payor of
19liability for a transfer if the death certificate is
20silent as to the decedent's marital status at the time
21of death; providing that the payor is not liable for
22making any payment on account of, or transferring any
23interest in, certain types of assets to a beneficiary;
24providing that certain provisions apply
25notwithstanding the payor's knowledge that the person
26to whom the asset is transferred is different from the
27person who would own the interest due to the
28dissolution of the decedent's marriage or declaration
29of the marriage's validity before the decedent's
30death; providing that the provisions do not affect
31specified interests and rights; creating ss. 765.2021
32and 765.3031, F.S.; providing that a spouse's
33authority as a health care surrogate or a surrogate
34under a living will, respectively, terminates upon the
35dissolution or annulment of the marriage, unless the
36document or the final judgment of dissolution provides
37otherwise; providing for the administration of the
38declaration of health care surrogacy or living will
39after the dissolution or annulment; providing
40applicability; providing an effective date.
41
42Be It Enacted by the Legislature of the State of Florida:
43
44     Section 1.  Section 732.703, Florida Statutes, is created
45to read:
46     732.703  Effect of divorce, dissolution, or invalidity of
47marriage on disposition of certain assets at death.-
48     (1)  As used in this section, unless the context requires
49otherwise, the term:
50     (a)  "Asset," when not modified by other words or phrases,
51means an asset described in subsection (3).
52     (b)  "Beneficiary" means any person designated in a
53governing instrument to receive an interest in an asset upon the
54death of the decedent.
55     (c)  "Death certificate" means a certified copy of a death
56certificate issued by an official or agency for the place where
57the decedent's death occurred.
58     (d)  "Employee benefit plan" means any funded or unfunded
59plan, program, or fund established by an employer to provide an
60employee's beneficiaries with benefits that may be payable on
61the employee's death.
62     (e)  "Governing instrument" means any writing or contract
63governing the disposition of all or any part of an asset upon
64the death of the decedent.
65     (f)  "Payor" means any person obligated to make payment of
66the decedent's interest in an asset upon the death of the
67decedent, and any other person who is in control or possession
68of an asset.
69     (g)  "Primary beneficiary" means a beneficiary designated
70under the governing instrument to receive an interest in an
71asset upon the death of the decedent who is not a secondary
72beneficiary. A person who receives an interest in the asset upon
73the death of the decedent due to the death of another
74beneficiary prior to the decedent's death is also a primary
75beneficiary.
76     (h)  "Secondary beneficiary" means a beneficiary designated
77under the governing instrument who will receive an interest in
78an asset if the designation of the primary beneficiary is
79revoked or otherwise cannot be given effect.
80     (2)  A designation made by or on behalf of the decedent
81providing for the payment or transfer at death of an interest in
82an asset to or for the benefit of the decedent's former spouse
83is void as of the time the decedent's marriage was judicially
84dissolved or declared invalid by court order prior to the
85decedent's death, if the designation was made prior to the
86dissolution or court order. The decedent's interest in the asset
87shall pass as if the decedent's former spouse predeceased the
88decedent. An individual retirement account described in s. 408
89or s. 408A of the Internal Revenue Code of 1986, or an employee
90benefit plan, may not be treated as a trust for purposes of this
91section.
92     (3)  Subsection (2) applies to the following assets in
93which a resident of this state has an interest at the time of
94the resident's death:
95     (a)  A life insurance policy, qualified annuity, or other
96similar tax-deferred contract held within an employee benefit
97plan.
98     (b)  An employee benefit plan.
99     (c)  An individual retirement account described in s. 408
100or s. 408A of the Internal Revenue Code of 1986, including an
101individual retirement annuity described in s. 408(b) of the
102Internal Revenue Code of 1986.
103     (d)  A payable-on-death account.
104     (e)  A security or other account registered in a transfer-
105on-death form.
106     (f)  A life insurance policy, annuity, or other similar
107contract that is not held within an employee benefit plan or a
108tax-qualified retirement account.
109     (4)  Subsection (2) does not apply:
110     (a)  To the extent that controlling federal law provides
111otherwise;
112     (b)  If the governing instrument is signed by the decedent,
113or on behalf of the decedent, after the order of dissolution or
114order declaring the marriage invalid and such governing
115instrument expressly provides that benefits will be payable to
116the decedent's former spouse;
117     (c)  To the extent a will or trust governs the disposition
118of the assets and s. 732.507(2) or s. 736.1005 applies;
119     (d)  If the order of dissolution or order declaring the
120marriage invalid requires that the decedent acquire or maintain
121the asset for the benefit of a former spouse or children of the
122marriage, payable upon the death of the decedent either outright
123or in trust, only if other assets of the decedent fulfilling
124such a requirement for the benefit of the former spouse or
125children of the marriage do not exist upon the death of the
126decedent;
127     (e)  If, under the terms of the order of dissolution or
128order declaring the marriage invalid, the decedent could not
129have unilaterally terminated or modified the ownership of the
130asset, or its disposition upon the death of the decedent;
131     (f)  If the designation of the decedent's former spouse as
132a beneficiary is irrevocable under applicable law;
133     (g)  If the instrument directing the disposition of the
134asset at death is governed by the laws of a state other than
135this state;
136     (h)  To an asset held in two or more names as to which the
137death of one coowner vests ownership of the asset in the
138surviving coowner or coowners; or
139     (i)  If the decedent remarries the person whose interest
140would otherwise have been revoked under this section and the
141decedent and that person are married to one another at the time
142of the decedent's death.
143     (5)  In the case of an asset described in paragraph (3)(a),
144paragraph (3)(b), or paragraph (3)(c), unless payment or
145transfer would violate a court order directed to, and served as
146required by law on, the payor:
147     (a)  If the governing instrument does not explicitly
148specify the relationship of the beneficiary to the decedent or
149if the governing instrument explicitly provides that the
150beneficiary is not the decedent's spouse, the payor is not
151liable for making any payment on account of, or transferring any
152interest in, the asset to the beneficiary.
153     (b)  As to any portion of the asset required by the
154governing instrument to be paid after the decedent's death to a
155primary beneficiary explicitly designated in the governing
156instrument as the decedent's spouse:
157     1.  If the death certificate states that the decedent was
158married at the time of his or her death to that spouse, the
159payor is not liable for making a payment on account of, or for
160transferring an interest in, that portion of the asset to such
161primary beneficiary.
162     2.  If the death certificate states that the decedent was
163not married at the time of his or her death, or if the death
164certificate states that the decedent was married to a person
165other than the spouse designated as the primary beneficiary at
166the time of his or her death, the payor is not liable for making
167a payment on account of, or for transferring an interest in,
168that portion of the asset to a secondary beneficiary under the
169governing instrument.
170     3.  If the death certificate is silent as to the decedent's
171marital status at the time of his or her death, the payor is not
172liable for making a payment on account of, or for transferring
173an interest in, that portion of the asset to the primary
174beneficiary upon delivery to the payor of an affidavit validly
175executed by the primary beneficiary in substantially the
176following form:
177
178STATE OF __________
179COUNTY OF _____________
180     Before me, the undersigned authority, personally
181appeared ...(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
185Decedent's death)....
186     2.  Affiant is a "primary beneficiary" as that
187term is defined in Section 732.703, Florida Statutes.
188Affiant and Decedent were married on ...(type or print
189the date of marriage )..., and were legally married to
190one another on the date of the Decedent's death.
191
192     ________________________________
193                                   ...( Affiant)...
194     Sworn to or affirmed before me by the affiant who
195is personally known to me or who has produced
196...(state type of identification)... as identification
197this .... day of ...(month)..., ...(year)....
198     ...(Signature of Officer)...
199...(Print, Type, or Stamp Commissioned name of Notary
200Public)...
201
202     4.  If the death certificate is silent as to the decedent's
203marital status at the time of his or her death, the payor is not
204liable for making a payment on account of, or for transferring
205an interest in, that portion of the asset to the secondary
206beneficiary upon delivery to the payor of an affidavit validly
207executed by the secondary beneficiary affidavit in substantially
208the following form:
209
210STATE OF __________
211COUNTY OF _____________
212     Before me, the undersigned authority, personally
213appeared ...(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
217Decedent's death)....
218     2.  Affiant is a "secondary beneficiary" as that
219term is defined in Section 732.703, Florida Statutes.
220On the date of the Decedent's death, the Decedent was
221not legally married to the spouse designated as the
222"primary beneficiary" as that term is defined in
223Section 732.703, Florida Statutes.
224     Sworn to or affirmed before me by the affiant who
225is personally known to me or who has produced
226...(state type of identification)... as identification
227this .... day of ...(month)..., ...(year)....
228     ...(Signature of Officer)...
229...(Print, Type, or Stamp Commissioned name of Notary
230Public)...
231
232     (6)  In the case of an asset described in paragraph (3)(d),
233paragraph (3)(e), or paragraph (3)(f), the payor is not liable
234for making any payment on account of, or transferring any
235interest in, the asset to any beneficiary.
236     (7)  Subsections (5) and (6) apply notwithstanding the
237payor's knowledge that the person to whom the asset is
238transferred is different from the person who would own the
239interest pursuant to subsection (2).
240     (8)  This section does not affect the ownership of an
241interest in an asset as between the former spouse and any other
242person entitled to such interest by operation of this section,
243the rights of any purchaser for value of any such interest, the
244rights of any creditor of the former spouse or any other person
245entitled to such interest, or the rights and duties of any
246insurance company, financial institution, trustee,
247administrator, or other third party.
248     (9)  This section applies to all designations made by or on
249behalf of decedents dying on or after July 1, 2012, regardless
250of when the designation was made.
251     Section 2.  Section 765.2021, Florida Statutes, is created
252to read:
253     765.2021  Termination of authority upon dissolution of
254marriage.-
255     (1)  Upon the dissolution or annulment of a marriage, a
256former spouse's authority as a health care surrogate terminates
257upon the dissolution or annulment of the marriage, unless the
258document or the final judgment of dissolution or annulment
259provides otherwise. After the dissolution or annulment, the
260document designating a health care surrogate shall be
261administered as if the former spouse predeceased the other
262spouse and is therefore unable to perform his or her duties. The
263remainder of the document shall be unaffected.
264     (2)  This section applies to all final judgments of
265dissolution or annulment entered on or after July 1, 2012.
266     Section 3.  Section 765.3031, Florida Statutes, is created
267to read:
268     765.3031  Termination of authority upon dissolution of
269marriage.-
270     (1)  Upon the dissolution or annulment of a marriage, a
271former spouse's authority as a surrogate for the other spouse
272under a living will terminates upon the dissolution or annulment
273of the marriage, unless the document or the final judgment of
274dissolution or annulment provides otherwise. After the
275dissolution or annulment, the living will shall be administered
276as if the former spouse predeceased the other spouse, and the
277remainder of the document shall be unaffected.
278     (2)  This section applies to all final judgments of
279dissolution or annulment entered on or after July 1, 2012.
280     Section 4.  This act shall take effect July 1, 2012.


CODING: Words stricken are deletions; words underlined are additions.