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.