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.