Estate Planning After Divorce 2

When married couples execute wills and other estate planning documents, they generally leave a majority of their assets to their spouse (especially in the case of a first marriage) and name their spouse as the decision-maker for financial and healthcare decisions in the event the other spouse becomes incapacitated. Divorcing or divorced couples, however, probably no longer want their estranged spouse as the designated beneficiary of an estate or trust or as the designated decision-maker in a “living will”.

Bequests to Ex-Spouses Revoked Upon Divorce

When a divorce is final under the law, most states have laws which automatically revoke certain probate and estate planning documents as to a deceased person’s ex-spouse. (During the pendency of a divorce case, however, an estranged spouse could still inherit his or her deceased spouse’s separate property or be in the position of making major medical decisions if the other spouse becomes incapacitated. You will want to discuss this with your divorce attorney and determine how best to address the issue in your particular situation.)

After the divorce is final and any bequests to an ex-spouse are revoked by law, what was his or her interest in your estate will then pass to any secondary beneficiaries under your will or under intestacy statutes. If you wish to provide for specific bequests to an ex-spouse even after a divorce, your will should be amended or restated to explain that in detail.

Execute New Will/Trust/Power of Attorney

It is probably best practice though to execute a new will and/or trust. If your children are still minors, you may want to investigate a trust – as they will not be able to inherit your estate outright until they reach the age of majority. A trust will avoid the need for your family to go to court and establish a conservatorship (answerable to the court) to maintain your children’s inheritance for them until they reach adulthood.

You will also need to designate a guardian for any minor children (If you share custody of your children with your ex-spouse, they will be in his or her full custody in the event of your death. But you will want to designate a back-up in the event that your ex-spouse predeceases you while your children are still minors.) Any health care power of attorney you may have should also be updated, authorizing someone else to make medical decisions for you in the event you are not able to do so.

Estate Planning Upon Subsequent Marriages

If you remarry following a divorce or death of a spouse and you have children from the first marriage, you should pay very close attention to how your estate plan treats both your children and your spouse. It may be best to create a trust in addition to executing a will.

For the couple who marries later in life and has no children together, a trust can provide a place to live and income for the surviving spouse during his or her lifetime. Upon his or her death, the estate would pass to the children of the first marriage (and not to the surviving spouse’s children from another marriage). If no trust is in place to do this, the deceased spouse’s children from a first marriage could receive nothing from their mother or father’s estate, as the estate, including personal items and the family home, would likely pass to the second spouse (and then to his or her children upon his or her death).

For the couple who have children from previous relationships as well as together, a new will and trust can specify how your assets are to be distributed between your spouse and all children, making sure that children from your first marriage do not get unintentionally disinherited. A trust can even ensure that your children’s potential ex-spouses do not have any claim to your estate upon your passing.

Change Beneficiary Designations

Don’t forget your beneficiary designations when reviewing your estate planning. Your retirement accounts, life insurance or annuities will all pass outside of probate court upon your death. For those assets, you must designate an individual or a trust (depending on the specific asset in question) as beneficiary to whom the asset will be transferred upon your death. You may also have bank accounts designated with a payable on death (or “P.O.D.”) beneficiary. The person named as POD beneficiary gets the funds in that particular account when you die.

Like wills, such designations are generally automatically revoked upon divorce. However, you should review your secondary or replacement beneficiary designations upon divorce, especially if your minor children are named as beneficiaries (see discussion of trusts above).

Additionally, some employee benefits and pension plans will not automatically terminate a former spouse’s interests if he is named as the primary beneficiary on a plan or benefit program (even if you are divorced). You must make sure that the beneficiary designations are changed following the applicable procedure required by federal law.

Be sure to discuss estate planning issues with both your divorce attorney and your estate planning attorney without delay.

Looking for legal answers?



Discussion

  • Divorce is the legal termination of a marriage. It is possible to have a separation period rather than a divorce – you and your partner cease to be in a relationship when separated, but legally you are still married. Divorce on the other hand is a legal process that can have implications in terms of the finances of the two people involved and custody of children.

    To file for divorce you must make a submission to your local Probate and Family Court. Divorce proceedings can’t begin until you or your former partner have made a formal filing.

    There are two different ways to file for divorce. If you have already agreed with your former partner as to how you will deal with the issues of child custody and the division of assets, and all other issues that might need resolving, you can file a joint petition and have the marriage dissolved. This is the best possible situation to strive for because it helps you avoid the heavy involvement of lawyers and a possible court battle.

    If you can’t resolve these matters with your partner, one or the other of you may file for a complaint for divorce. In this case you will need to hire a divorce lawyer to resolve matters by legal means.

    Things can get a little confusing here, because there is another division when it comes to complaints for divorce. In one instance you and your partner agree that the marriage can’t be saved, but you need mediation to decide on how to split up property, child custody, and so on. In the other instance, one party does not agree that the marriage is beyond repair. This is a very difficult position to argue when your spouse is filing for divorce. In this case you are best to try to talk your spouse into a trial separation, rather than a divorce.

    Arguably the most important issue that comes up in a divorce situation is who will have custody of children produced by the marriage and whether or not both partners have access to the children. Be aware that if the divorce is occurring because of domestic violence, or one partner is able to prove to a judge that the other presents any physical danger to the children, that partner will quite likely be denied the right to see them.

    It is best to try to come to an agreement with your partner over where the children will live and arrange weekend visits if possible. This is not always realistic however, as often both parties are eager to keep the children with them. Often stay-at-home mothers will be entitled to keep the children, and their working ex-husbands will be required to pay alimony – a regular payment for support of the spouse and children. Alimony exists because it is often difficult for a parent who has spentyears raising children to re-enter the workforce.

    It’s fairly well known that in many divorce settlements, assets are split 50-50. This is not always the case, however. In the case of a prenuptial agreement, the division of assets will typically be decided before the marriage even begins. Also, in the case that one spouse is proven to be at fault for the failure of the marriage – because of infidelity, for instance – then that spouse may not be entitled to any of the assets built up or acquired during the course of the marriage.

    Be aware of the concept of marital property. If there are assets in your family that have been built over the course of your marriage, your spouse may be entitled to a stake in them even though they are in your name and they exist as the result of your work. They come under the umbrella of marital property regardless of whose name they are under.

    Keep in mind also that as well as the division of assets, there may be a division of debts.

    For more detailed divorce information, your best option is to contact a divorce lawyer in your area. Many will offer a free consultation.

    Ending a marriage is never easy. I know. My name is Holcy and I’ve been where you are right now. That’s why I provide others with the information I wish I had known before I went through my own divorce. So stick with me and we’ll get through this together.

  • I think that there should not be any blame game in companionship; comments like ‘who is responsible for the divorce’, or ‘who didn’t do his/her best to keep things together’, often end up triggering the tempers. If the mind is set on filing for a divorce, it should be done with as soon as possible, rather than prolonging things and making it worse. Divorce is hard on both the parties, and worse if the children are involved. Hiring a good lawyer can make things easier and faster in order to help one move on with the right strategies for managing distribution of assets and mediating in financial struggles. It’s a sound advice given here, but care should be taken by the other party too; divorce should be handled maturely instead of being too emotional and delving into revenge. Think practically and rationally about the things to be divided among the two parties, getting into emotional tantrums will delay the process of divorce and lead to bitterness later on.