Florida Senate - 2012 SB 1146 By Senator Simmons 22-00668A-12 20121146__ 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 42 Be It Enacted by the Legislature of the State of Florida: 43 44 Section 1. Section 732.703, Florida Statutes, is created to 45 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 which 93 a resident of this state has an interest at the time of the 94 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 or 100 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 a 132 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 specify 148 the relationship of the beneficiary to the decedent or if the 149 governing instrument explicitly provides that the beneficiary is 150 not the decedent’s spouse, the payor is not liable for making 151 any payment on account of, or transferring any interest in, the 152 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: 177 178 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.