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.