HB 401

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
45	to 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
93	which a resident of this state has an interest at the time of
94	the 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
100	or 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
132	a 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
148	specify the relationship of the beneficiary to the decedent or
149	if the governing instrument explicitly provides that the
150	beneficiary is not the decedent's spouse, the payor is not
151	liable for making any payment on account of, or transferring any
152	interest in, the 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.

CODING: Words stricken are deletions; words underlined are additions.