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Should Parties Make Wills or Change Their Wills or Other Estate Planning Documents During the Pendency of a Divorce Proceeding?

The laws of intestacy, or inheritance, provide for spousal rights in various states. If divorcing parties have wills or other estate planning documents in place, same may also provide for testamentary disposition, including for the spouse they are divorcing.

Issues can arise in regard to estate planning documents during the pendency of a divorce proceeding.

If a will and/or other estate planning documents are in place during the pendency of a divorce proceeding, those documents may control even though that is not what the maker of the will or other estate planning documents desire at that time.

There is always a possibility that a spouse may pass away during the pendency of a divorce proceeding which results in the will or other estate planning documents of the predeceasing spouse controlling with respect to how the deceased's asses are to be distributed, not to mention the death of a spouse giving rise to right of a surviving spouse.

Parties involved in a divorce proceeding should not take the position that once everything is over, including any dissolution of marriage being entered, that they will then revisit and/or change their estate planning documents. Rather, as soon as possible during the pendency of a divorce proceeding, the parties should confer with their attorneys as to the appropriateness of making any changes to their estate planning documents at that time and also to be advised as to risks and/or consequences that may arise if changes are not immediately made.

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