Protecting Your Children's Inheritance in a Florida Divorce

If you’re not divorced yet, then there’s still time to take action. Time to prepare for not only your future, but that of your children as well. Even better if you’re just now contemplating marriage, as a prenuptial agreement is the best way to protect your children (born or yet unborn) from the potentially devastating effects of a divorce.

In this blog post we discuss how you can protect your children’s rights both before and after a divorce is finalized, or even filed.

High Net Worth Divorces Require Thoughtful Estate Planning

More money more problems, and everyone knows it, but nothing shakes the family tree quite like high net worth divorces. What if your spouse remarries and attempts to disinherit your children? Sure, technically the money is your ex’s after a divorce, but what steps can be done to protect generational wealth in a high-net-worth divorce?

Some tools to protect your children’s assets following a divorce include:

  • Prenuptial agreement – The parties can agree upon divorce terms and estate planning initiatives before they are married, making it easier to address such issues post-divorce and serving to protect the interests of the parties and their children.
  • Postnuptial agreement – Although not as common as prenuptial agreements (and often harder to enforce), postnuptial agreements are legally viable in Florida and may allow an intact marriage to plan for the transfer of assets and the protection of generational wealth should the marriage later end.
  • Divorce settlement negotiations – You may wish to include language in the divorce settlement agreement that will protect your children’s interests in your spouse’s estate. For instance, language may be added suggesting that each party will bequest a specific percentage (often 50% total, in equal shares) to their children, and this may serve as a future lien against your ex’s estate. This language can be sold as mutually beneficial if you are willing to agree to the same restrictions for your own estate.
  • Standard estate planning tricks – Trusts, gifts, and other estate planning vehicles may also protect your children’s assets following a divorce. It is important to remember that your attorney will only be able to protect your interests, and that such negotiations will rely upon your agreement that your children’s interests are aligned with your own. Your attorney will work with you, and estate planning counsel if necessary, to ensure federal and state compliance when utilizing such financial vehicles. Dale L. Bernstein Chartered Law Office frequently works with estate and trust attorneys, as well as other experts to pursue great and intended results for our clients.

The Kids Are Alright—Unless You Allow Your Spouse to Disinherit Them

Most people in intact marriages don’t have to worry too much about how their death or that of their spouse may impact their children. A will or estate plan is often all that is required to ensure the passing of generational wealth.

But when you are divorced, unless there is a law or settlement language stating otherwise, your spouse may distribute their inheritance however they wish. You’ll have no say over their leaving everything to a charity, for instance, or more likely to their new spouse. That’s why preparation is essential in divorce cases, particularly those involving high-net-worth litigants.

Although estate planning law is beyond the scope of this post, it should be noted that whether someone dies intestate (without a valid will) or not may impact an inheritance analysis.

Unlike in many states, in Florida it is legally actionable to fully disinherit adult children. That means there is no elective share (minimum percentage share) for adult children in Florida. It also means that your ex can fully disinherit the children from your marriage, for just cause or not.

Although you cannot fully disinherit minor children—leaving them a ward of the state—Florida laws are generally unfriendly to children expecting an inheritance. Said another way, adult children have no reasonable expectation of an inheritance in Florida. That is why it’s particularly important that the above steps be considered if it’s personally important to stop your ex from disinheriting the children of the marriage.

A Global Approach to Divorce Law

Retaining an experienced lawyer is essential to not only protecting your rights, but also those of your children. As Florida provides no threshold elective share for adult children, you will need to protect their rights before the divorce is finalized.

If you’re facing a high net worth divorce case, call (727) 312-1112 or complete an online contact form to schedule a free initial consultation with Dale L. Bernstein Chartered Law Office.

We look forward to learning more about you and your important divorce matter.


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