Estate Planning and Divorce

Married individuals who are considering divorce should review their estate plans to determine if they remain appropriate in light of the possible divorce. Remember that the law considers you to be legally married until the judge signs the final dissolution decree ending the marriage. In the event you were to die or become disabled prior to the legal termination of your marriage, your estranged spouse may have legal control over you and your estate, and may be entitled to most, if not all, of your estate. However, through properly drafted estate planning documents, you can provide that someone other than your spouse will have control over you (in the event of your incapacity) or your estate (in the event of your death), and you can limit your estranged spouse's rights as a beneficiary of your estate.

The following estate planning articles are designed to highlight some of the major estate planning issues facing you at this time, but it is not a list of all estate planning issues you should consider. Because of the very technical nature of the issues that can arise when considering your estate plan while a divorce is pending, you should seek the advice of a qualified attorney to give you specific guidance on your particular situation.

What you need to know:
  • If You Don't Have A Will: If you do not have a will, in most states your spouse will automatically be entitled to control of your estate and will be entitled to at least half of your estate (depending upon whether or not you have children) in the event of your death.
  • If You Have A Will or Trust: If you have a will or similar estate planning document, such as a living trust, your spouse will typically be designated as the executor and/or trustee, and probably is named as the primary or sole beneficiary of your estate.
  • Beneficiary Designations: Most of us today are "worth more dead than alive." That is because a large part of our estate consists of life insurance policies and retirement plans.
  • Your Disability: In the event you become disabled while your divorce is pending, such as through an automobile accident, stroke or heart attack, such that you are no longer capable of handling your affairs, a guardian normally must be appointed for you.
  • Powers of Attorney: If you have previously done estate planning, you have probably given your spouse a Durable Power of Attorney to handle your affairs.
  • Health Care Surrogate and Living Will: Many people have signed a Designation of Health Care Surrogate (also known as a Health Care Power of Attorney) and a Living Will which designate their spouse as the person to make their health related decisions, including the decision to "pull the plug" in the event of a terminal illness.
  • Your Parents' Estates: In some cases, you may be named as a beneficiary under the estate planning documents of a parent or other relative.
  • Child Custody: Under most states laws, upon your death custody of your minor children would normally pass to the children's surviving parent (in most cases, the person you are now in the process of divorcing).

Suggested Reading
Divorce & Money: How to Make the Best Financial Decisions
This book is a practical guide to evaluating assets during divorce. It explains how to determine the real value of marital property including houses, businesses, retirement plans and investments and how to negotiate a settlement that is fair to both sides.

Authors: Violet Woodhouse & Dale Fetherling


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ELEMENTS OF AN ESTATE PLAN – An estate plan includes a will, a power of attorney, and a living will or health care proxy (a medical power of attorney). In some cases, a trust may also make sense.

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