If You Don’t Have A Will
Key Points
  • Typically it is presumed that if you die without a will your spouse controls and receives your estate. If you have children your spouse will control the estate but may only receive half, depending on the state’s laws. Do not wait until the divorce is final to make the necessary changes to your will and other estate planning documents.
  • You are still legally married until the divorce is final so make sure your wishes are carried out.
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.

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. Therefore, the single most important step you can take to make sure that your desires are carried out is to execute a new will expressing your wishes as to whom you want to handle the estate (executor) and whom you want to receive your estate (beneficiaries). Do not wait until the divorce is final to prepare your will--if you die before the divorce is final, you will still be considered legally married and your pending divorce will have no effect on his or her inheritance. You should seek the advice of a qualified estate planning attorney to guide you through the preparation of a will and related estate planning documents.

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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