Florida Senate - 2012 CS for CS for SB 1146 By the Committees on Budget Subcommittee on General Government Appropriations; and Judiciary; and Senator Simmons 601-04287-12 20121146c2 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), except as provided 44 in paragraph (4)(j).. 45 (b) “Beneficiary” means any person designated in a 46 governing instrument to receive an interest in an asset upon the 47 death of the decedent. 48 (c) “Death certificate” means a certified copy of a death 49 certificate issued by an official or agency for the place where 50 the decedent’s death occurred. 51 (d) “Employee benefit plan” means any funded or unfunded 52 plan, program, or fund established by an employer to provide an 53 employee’s beneficiaries with benefits that may be payable on 54 the employee’s death. 55 (e) “Governing instrument” means any writing or contract 56 governing the disposition of all or any part of an asset upon 57 the death of the decedent. 58 (f) “Payor” means any person obligated to make payment of 59 the decedent’s interest in an asset upon the death of the 60 decedent, and any other person who is in control or possession 61 of an asset. 62 (g) “Primary beneficiary” means a beneficiary designated 63 under the governing instrument to receive an interest in an 64 asset upon the death of the decedent who is not a secondary 65 beneficiary. A person who receives an interest in the asset upon 66 the death of the decedent due to the death of another 67 beneficiary prior to the decedent’s death is also a primary 68 beneficiary. 69 (h) “Secondary beneficiary” means a beneficiary designated 70 under the governing instrument who will receive an interest in 71 an asset if the designation of the primary beneficiary is 72 revoked or otherwise cannot be given effect. 73 (2) A designation made by or on behalf of the decedent 74 providing for the payment or transfer at death of an interest in 75 an asset to or for the benefit of the decedent’s former spouse 76 is void as of the time the decedent’s marriage was judicially 77 dissolved or declared invalid by court order prior to the 78 decedent’s death, if the designation was made prior to the 79 dissolution or court order. The decedent’s interest in the asset 80 shall pass as if the decedent’s former spouse predeceased the 81 decedent. An individual retirement account described in s. 408 82 or s. 408A of the Internal Revenue Code of 1986, or an employee 83 benefit plan, may not be treated as a trust for purposes of this 84 section. 85 (3) Subsection (2) applies to the following assets in which 86 a resident of this state has an interest at the time of the 87 resident’s death: 88 (a) A life insurance policy, qualified annuity, or other 89 similar tax-deferred contract held within an employee benefit 90 plan. 91 (b) An employee benefit plan. 92 (c) An individual retirement account described in s. 408 or 93 s. 408A of the Internal Revenue Code of 1986, including an 94 individual retirement annuity described in s. 408(b) of the 95 Internal Revenue Code of 1986. 96 (d) A payable-on-death account. 97 (e) A security or other account registered in a transfer 98 on-death form. 99 (f) A life insurance policy, annuity, or other similar 100 contract that is not held within an employee benefit plan or a 101 tax-qualified retirement account. 102 (4) Subsection (2) does not apply: 103 (a) To the extent that controlling federal law provides 104 otherwise; 105 (b) If the governing instrument is signed by the decedent, 106 or on behalf of the decedent, after the order of dissolution or 107 order declaring the marriage invalid and such governing 108 instrument expressly provides that benefits will be payable to 109 the decedent’s former spouse; 110 (c) To the extent a will or trust governs the disposition 111 of the assets and s. 732.507(2) or s. 736.1005 applies; 112 (d) If the order of dissolution or order declaring the 113 marriage invalid requires that the decedent acquire or maintain 114 the asset for the benefit of a former spouse or children of the 115 marriage, payable upon the death of the decedent either outright 116 or in trust, only if other assets of the decedent fulfilling 117 such a requirement for the benefit of the former spouse or 118 children of the marriage do not exist upon the death of the 119 decedent; 120 (e) If, under the terms of the order of dissolution or 121 order declaring the marriage invalid, the decedent could not 122 have unilaterally terminated or modified the ownership of the 123 asset, or its disposition upon the death of the decedent; 124 (f) If the designation of the decedent’s former spouse as a 125 beneficiary is irrevocable under applicable law; 126 (g) If the instrument directing the disposition of the 127 asset at death is governed by the laws of a state other than 128 this state; 129 (h) To an asset held in two or more names as to which the death 130 of one coowner vests ownership of the asset in the surviving 131 coowner or coowners; 132 (i) If the decedent remarries the person whose interest 133 would otherwise have been revoked under this section and the 134 decedent and that person are married to one another at the time 135 of the decedent’s death; or 136 (j) To state-administered retirement plans under chapter 137 121. 138 (5) In the case of an asset described in paragraph (3)(a), 139 paragraph (3)(b), or paragraph (3)(c), unless payment or 140 transfer would violate a court order directed to, and served as 141 required by law on, the payor: 142 (a) If the governing instrument does not explicitly specify 143 the relationship of the beneficiary to the decedent or if the 144 governing instrument explicitly provides that the beneficiary is 145 not the decedent’s spouse, the payor is not liable for making 146 any payment on account of, or transferring any interest in, the 147 asset to the beneficiary. 148 (b) As to any portion of the asset required by the 149 governing instrument to be paid after the decedent’s death to a 150 primary beneficiary explicitly designated in the governing 151 instrument as the decedent’s spouse: 152 1. If the death certificate states that the decedent was 153 married at the time of his or her death to that spouse, the 154 payor is not liable for making a payment on account of, or for 155 transferring an interest in, that portion of the asset to such 156 primary beneficiary. 157 2. If the death certificate states that the decedent was 158 not married at the time of his or her death, or if the death 159 certificate states that the decedent was married to a person 160 other than the spouse designated as the primary beneficiary at 161 the time of his or her death, the payor is not liable for making 162 a payment on account of, or for transferring an interest in, 163 that portion of the asset to a secondary beneficiary under the 164 governing instrument. 165 3. If the death certificate is silent as to the decedent’s 166 marital status at the time of his or her death, the payor is not 167 liable for making a payment on account of, or for transferring 168 an interest in, that portion of the asset to the primary 169 beneficiary upon delivery to the payor of an affidavit validly 170 executed by the primary beneficiary in substantially the 171 following form: 172 173 STATE OF __________ 174 COUNTY OF _____________ 175 Before me, the undersigned authority, personally 176 appeared ...(type or print affiant’s name)... 177 (“Affiant”), who swore or affirmed that: 178 1. ...(Type or print name of decedent)... 179 (“Decedent”) died on ...(type or print the date of the 180 Decedent’s death).... 181 2. Affiant is a “primary beneficiary” as that 182 term is defined in Section 732.703, Florida Statutes. 183 Affiant and Decedent were married on ...(type or print 184 the date of marriage )..., and were legally married to 185 one another on the date of the Decedent’s death. 186 187 ________________________________ 188 ...( Affiant)... 189 Sworn to or affirmed before me by the affiant who 190 is personally known to me or who has produced 191 ...(state type of identification)... as identification 192 this .... day of ...(month)..., ...(year).... 193 ...(Signature of Officer)... 194 ...(Print, Type, or Stamp Commissioned name of Notary 195 Public)... 196 197 4. If the death certificate is silent as to the decedent’s 198 marital status at the time of his or her death, the payor is not 199 liable for making a payment on account of, or for transferring 200 an interest in, that portion of the asset to the secondary 201 beneficiary upon delivery to the payor of an affidavit validly 202 executed by the secondary beneficiary affidavit in substantially 203 the following form: 204 205 STATE OF __________ 206 COUNTY OF _____________ 207 Before me, the undersigned authority, personally 208 appeared ...(type or print affiant’s name)... 209 (“Affiant”), who swore or affirmed that: 210 1. ...(Type or print name of decedent)... 211 (“Decedent”) died on ...(type or print the date of the 212 Decedent’s death).... 213 2. Affiant is a “secondary beneficiary” as that 214 term is defined in Section 732.703, Florida Statutes. 215 On the date of the Decedent’s death, the Decedent was 216 not legally married to the spouse designated as the 217 “primary beneficiary” as that term is defined in 218 Section 732.703, Florida Statutes. 219 Sworn to or affirmed before me by the affiant who 220 is personally known to me or who has produced 221 ...(state type of identification)... as identification 222 this .... day of ...(month)..., ...(year).... 223 ...(Signature of Officer)... 224 ...(Print, Type, or Stamp Commissioned name of Notary 225 Public)... 226 227 (6) In the case of an asset described in paragraph (3)(d), 228 paragraph (3)(e), or paragraph (3)(f), the payor is not liable 229 for making any payment on account of, or transferring any 230 interest in, the asset to any beneficiary. 231 (7) Subsections (5) and (6) apply notwithstanding the 232 payor’s knowledge that the person to whom the asset is 233 transferred is different from the person who would own the 234 interest pursuant to subsection (2). 235 (8) This section does not affect the ownership of an 236 interest in an asset as between the former spouse and any other 237 person entitled to such interest by operation of this section, 238 the rights of any purchaser for value of any such interest, the 239 rights of any creditor of the former spouse or any other person 240 entitled to such interest, or the rights and duties of any 241 insurance company, financial institution, trustee, 242 administrator, or other third party. 243 (9) This section applies to all designations made by or on 244 behalf of decedents dying on or after July 1, 2012, regardless 245 of when the designation was made. 246 Section 2. This act shall take effect July 1, 2012.