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Wills and Divorce in Mississippi
Once you have decided that divorce is inevitable, depending on your old will's provisions, you may need to destroy it. It is established law that a person cannot disinherit his or her spouse completely, so a new will while you are separated but still married may be something to consider. There are ways to minimize what your spouse can take from your estate if that is your objective. After the divorce is final, I suggest that you revisit your will to make sure that you have your estate set up exactly like you want it to be. I can help you with your simple estate issues, but if you have more complicated requirements, we will need to have you visit with a specialist.
If your Temporary Order does not preclude it, you may want to review your insurance policies, retirement funds or other elements of your separate estates that can be allocated or reallocated to beneficiaries to ensure consistency with your wishes. Further, if acquiring new bank accounts, savings accounts, certificates of deposit, stock accounts or making other designations of ownership of property, you should consider titling in joint tenancy so if you die during the period of separation, your property would pass outside your estate and beyond the reach of your now estranged spouse.
The dissolution of marriage will NOT automatically revoke any bequests made to your former spouse in a Last Will and Testament. Depending on your financial situation, I may include a waiver of right to inherit in your Property Settlement Agreement.
It is possible to limit or eliminate your ex-spouse's control over the assets you are leaving your children. This can be accomplished by the creation of a simple testamentary trust which names a trusted person as the trustee of funds being left to the children during their minority. The goal is to avoid the guardianship estate that would more than likely be controlled by your ex-spouse. I also recommend that you put a provision in your will to make it clear that if your former spouse is determined to be incapable of discharging his or her duties as a parent, that a friend or family member will step into that role as the children's legal guardian.
If the couple is filing for divorce on the ground of irreconcilable differences, they can agree to joint custody and the court will grant it as being in the best interest of the child.
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