Wednesday, May 16, 2018

You're Legally Married Until You Aren't - Divorce and Estate Planning


“It doesn’t matter how far along the divorce is or how long the action has been pending, the law considers you to be legally married until the judge signs the final decree ending the marriage,” writes  Patti Spencer in thebalance.com. That means your spouse may still have legal control over you and your estate, and may be entitled to most, if not all of it.

What happens to all the spousal rights when a divorce is pending but one party dies before the final divorce decree is entered? In most situations, practitioner Kent A Jeffirs writes in ICLEF’s Law Tips, not much.  You’re still husband and wife. That means that even if one spouse changes the documents while the divorce is pending, the other spouse’s right to elect against the will remains until the divorce is finalSurviving spouses are also entitled to a $25,000 surviving spouse allowance, even if a divorce was pending.

There are five estate planning documents to be updated when you’re planning a divorce, Spencer points out:
  • your will
  • your trust
  • your power of attorney
  • your living will
  • your beneficiary designations
“If you’re going through the emotional and financial turmoil of a divorce, estate planning may be the last thing on your mind,” concedes attorney Mary Randolph in Nolo.com. Don’t count on state law to automatically revoke the naming of your spouse as executor – in your new will, appoint a new executor and an alternate.

At Geyer Law, we’ve come to realize, many people don’t know that it is not only marital assets that are divided in a divorce; marital debt is also divided between the spouses.  Some serious things to think about include:
  • Can you afford to take on half of the debt you and your spouse have incurred over the course of the marriage?
  • If you do take on half or part of the marital debt, what impact will it have on your credit score?
Estate planning may indeed be the last thing on your mind during a divorce, but don’t neglect your planning if you want your wishes to be followed!

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