Florida Senate - 2012                             CS for SB 1146
       
       
       
       By the Committee on Judiciary; and Senator Simmons
       
       
       
       
       590-02330-12                                          20121146c1
    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; providing
   32         applicability; providing an effective date.
   33  
   34  Be It Enacted by the Legislature of the State of Florida:
   35  
   36         Section 1. Section 732.703, Florida Statutes, is created to
   37  read:
   38         732.703 Effect of divorce, dissolution, or invalidity of
   39  marriage on disposition of certain assets at death.—
   40         (1) As used in this section, unless the context requires
   41  otherwise, the term:
   42         (a) “Asset,” when not modified by other words or phrases,
   43  means an asset described in subsection (3).
   44         (b) “Beneficiary” means any person designated in a
   45  governing instrument to receive an interest in an asset upon the
   46  death of the decedent.
   47         (c) “Death certificate” means a certified copy of a death
   48  certificate issued by an official or agency for the place where
   49  the decedent’s death occurred.
   50         (d) “Employee benefit plan” means any funded or unfunded
   51  plan, program, or fund established by an employer to provide an
   52  employee’s beneficiaries with benefits that may be payable on
   53  the employee’s death.
   54         (e) “Governing instrument” means any writing or contract
   55  governing the disposition of all or any part of an asset upon
   56  the death of the decedent.
   57         (f) “Payor” means any person obligated to make payment of
   58  the decedent’s interest in an asset upon the death of the
   59  decedent, and any other person who is in control or possession
   60  of an asset.
   61         (g) “Primary beneficiary” means a beneficiary designated
   62  under the governing instrument to receive an interest in an
   63  asset upon the death of the decedent who is not a secondary
   64  beneficiary. A person who receives an interest in the asset upon
   65  the death of the decedent due to the death of another
   66  beneficiary prior to the decedent’s death is also a primary
   67  beneficiary.
   68         (h) “Secondary beneficiary” means a beneficiary designated
   69  under the governing instrument who will receive an interest in
   70  an asset if the designation of the primary beneficiary is
   71  revoked or otherwise cannot be given effect.
   72         (2) A designation made by or on behalf of the decedent
   73  providing for the payment or transfer at death of an interest in
   74  an asset to or for the benefit of the decedent’s former spouse
   75  is void as of the time the decedent’s marriage was judicially
   76  dissolved or declared invalid by court order prior to the
   77  decedent’s death, if the designation was made prior to the
   78  dissolution or court order. The decedent’s interest in the asset
   79  shall pass as if the decedent’s former spouse predeceased the
   80  decedent. An individual retirement account described in s. 408
   81  or s. 408A of the Internal Revenue Code of 1986, or an employee
   82  benefit plan, may not be treated as a trust for purposes of this
   83  section.
   84         (3) Subsection (2) applies to the following assets in which
   85  a resident of this state has an interest at the time of the
   86  resident’s death:
   87         (a) A life insurance policy, qualified annuity, or other
   88  similar tax-deferred contract held within an employee benefit
   89  plan.
   90         (b) An employee benefit plan.
   91         (c) An individual retirement account described in s. 408 or
   92  s. 408A of the Internal Revenue Code of 1986, including an
   93  individual retirement annuity described in s. 408(b) of the
   94  Internal Revenue Code of 1986.
   95         (d) A payable-on-death account.
   96         (e) A security or other account registered in a transfer
   97  on-death form.
   98         (f) A life insurance policy, annuity, or other similar
   99  contract that is not held within an employee benefit plan or a
  100  tax-qualified retirement account.
  101         (4) Subsection (2) does not apply:
  102         (a) To the extent that controlling federal law provides
  103  otherwise;
  104         (b) If the governing instrument is signed by the decedent,
  105  or on behalf of the decedent, after the order of dissolution or
  106  order declaring the marriage invalid and such governing
  107  instrument expressly provides that benefits will be payable to
  108  the decedent’s former spouse;
  109         (c) To the extent a will or trust governs the disposition
  110  of the assets and s. 732.507(2) or s. 736.1005 applies;
  111         (d) If the order of dissolution or order declaring the
  112  marriage invalid requires that the decedent acquire or maintain
  113  the asset for the benefit of a former spouse or children of the
  114  marriage, payable upon the death of the decedent either outright
  115  or in trust, only if other assets of the decedent fulfilling
  116  such a requirement for the benefit of the former spouse or
  117  children of the marriage do not exist upon the death of the
  118  decedent;
  119         (e) If, under the terms of the order of dissolution or
  120  order declaring the marriage invalid, the decedent could not
  121  have unilaterally terminated or modified the ownership of the
  122  asset, or its disposition upon the death of the decedent;
  123         (f) If the designation of the decedent’s former spouse as a
  124  beneficiary is irrevocable under applicable law;
  125         (g) If the instrument directing the disposition of the
  126  asset at death is governed by the laws of a state other than
  127  this state;
  128         (h) To an asset held in two or more names as to which the
  129  death of one coowner vests ownership of the asset in the
  130  surviving coowner or coowners; or
  131         (i) If the decedent remarries the person whose interest
  132  would otherwise have been revoked under this section and the
  133  decedent and that person are married to one another at the time
  134  of the decedent’s death.
  135         (5) In the case of an asset described in paragraph (3)(a),
  136  paragraph (3)(b), or paragraph (3)(c), unless payment or
  137  transfer would violate a court order directed to, and served as
  138  required by law on, the payor:
  139         (a) If the governing instrument does not explicitly specify
  140  the relationship of the beneficiary to the decedent or if the
  141  governing instrument explicitly provides that the beneficiary is
  142  not the decedent’s spouse, the payor is not liable for making
  143  any payment on account of, or transferring any interest in, the
  144  asset to the beneficiary.
  145         (b) As to any portion of the asset required by the
  146  governing instrument to be paid after the decedent’s death to a
  147  primary beneficiary explicitly designated in the governing
  148  instrument as the decedent’s spouse:
  149         1. If the death certificate states that the decedent was
  150  married at the time of his or her death to that spouse, the
  151  payor is not liable for making a payment on account of, or for
  152  transferring an interest in, that portion of the asset to such
  153  primary beneficiary.
  154         2. If the death certificate states that the decedent was
  155  not married at the time of his or her death, or if the death
  156  certificate states that the decedent was married to a person
  157  other than the spouse designated as the primary beneficiary at
  158  the time of his or her death, the payor is not liable for making
  159  a payment on account of, or for transferring an interest in,
  160  that portion of the asset to a secondary beneficiary under the
  161  governing instrument.
  162         3. If the death certificate is silent as to the decedent’s
  163  marital status at the time of his or her death, the payor is not
  164  liable for making a payment on account of, or for transferring
  165  an interest in, that portion of the asset to the primary
  166  beneficiary upon delivery to the payor of an affidavit validly
  167  executed by the primary beneficiary in substantially the
  168  following form:
  169  
  170         STATE OF __________
  171         COUNTY OF _____________
  172         Before me, the undersigned authority, personally
  173         appeared ...(type or print affiant’s name)...
  174         (“Affiant”), who swore or affirmed that:
  175         1. ...(Type or print name of decedent)...
  176         (“Decedent”) died on ...(type or print the date of the
  177         Decedent’s death)....
  178         2. Affiant is a “primary beneficiary” as that
  179         term is defined in Section 732.703, Florida Statutes.
  180         Affiant and Decedent were married on ...(type or print
  181         the date of marriage )..., and were legally married to
  182         one another on the date of the Decedent’s death.
  183         		
  184         	________________________________
  185         ...( Affiant)...
  186         Sworn to or affirmed before me by the affiant who
  187         is personally known to me or who has produced
  188         ...(state type of identification)... as identification
  189         this .... day of ...(month)..., ...(year)....
  190         ...(Signature of Officer)...
  191         ...(Print, Type, or Stamp Commissioned name of Notary
  192         Public)...
  193  
  194         4. If the death certificate is silent as to the decedent’s
  195  marital status at the time of his or her death, the payor is not
  196  liable for making a payment on account of, or for transferring
  197  an interest in, that portion of the asset to the secondary
  198  beneficiary upon delivery to the payor of an affidavit validly
  199  executed by the secondary beneficiary affidavit in substantially
  200  the following form:
  201  
  202         STATE OF __________
  203         COUNTY OF _____________
  204         Before me, the undersigned authority, personally
  205         appeared ...(type or print affiant’s name)...
  206         (“Affiant”), who swore or affirmed that:
  207         1. ...(Type or print name of decedent)...
  208         (“Decedent”) died on ...(type or print the date of the
  209         Decedent’s death)....
  210         2. Affiant is a “secondary beneficiary” as that
  211         term is defined in Section 732.703, Florida Statutes.
  212         On the date of the Decedent’s death, the Decedent was
  213         not legally married to the spouse designated as the
  214         “primary beneficiary” as that term is defined in
  215         Section 732.703, Florida Statutes.
  216         Sworn to or affirmed before me by the affiant who
  217         is personally known to me or who has produced
  218         ...(state type of identification)... as identification
  219         this .... day of ...(month)..., ...(year)....
  220         ...(Signature of Officer)...
  221         ...(Print, Type, or Stamp Commissioned name of Notary
  222         Public)...
  223  
  224         (6) In the case of an asset described in paragraph (3)(d),
  225  paragraph (3)(e), or paragraph (3)(f), the payor is not liable
  226  for making any payment on account of, or transferring any
  227  interest in, the asset to any beneficiary.
  228         (7) Subsections (5) and (6) apply notwithstanding the
  229  payor’s knowledge that the person to whom the asset is
  230  transferred is different from the person who would own the
  231  interest pursuant to subsection (2).
  232         (8) This section does not affect the ownership of an
  233  interest in an asset as between the former spouse and any other
  234  person entitled to such interest by operation of this section,
  235  the rights of any purchaser for value of any such interest, the
  236  rights of any creditor of the former spouse or any other person
  237  entitled to such interest, or the rights and duties of any
  238  insurance company, financial institution, trustee,
  239  administrator, or other third party.
  240         (9) This section applies to all designations made by or on
  241  behalf of decedents dying on or after July 1, 2012, regardless
  242  of when the designation was made.
  243         Section 2. This act shall take effect July 1, 2012.