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Estate Planning Considerations in a Divorce

Posted on : June 1, 2017, By:  Christopher Hildebrand

Estate Planning Consideration in a Divorce

One aspect of a divorce often overlooked is updating the estate planning documents of the parties.  Divorces don’t happen overnight, and the parties may be separated for months or years before the divorce is finalized.  During this time of separation, the law still recognizes the parties as married, despite their status of separated as a Pottstown family law attorney can explain.  This can be an issue if during the time of separation one party’s health diminishes, or even worse if one party passes away. However, there are things that can be done to reduce the rights of the parties over each other’s estates before the finalization of the divorce.

Estate Planning Consideration in a Divorce | Powers of Attorney

If the parties executed a Financial Power of Attorney and Healthcare Power of Attorney, while married, listing each other as their agent it is important to have these documents updated as soon as possible.  It is important to have these updated because of the extensive powers are given to the individual listed as an agent.  A Financial Power of Attorney gives the person listed as the agent broad authority to act on behalf of the individual in financial matters, including the ability to engage in real property transactions, the ability to engage in banking and financial transactions, and the ability to receive governmental benefits on behalf of the individual.  A Healthcare Power of Attorney provides your agent with the ability to make your healthcare decisions if you are found to be incapable of making them on your own.  These powers should only be given to a person who you can trust to act in your best interest.

Usually, if any issues arise during the divorce process that would require the use of either a Financial Power of Attorney or Healthcare Power of Attorney, it is unlikely either party would be comfortable with their spouse making these kinds of decisions on their behalf.  A Financial Power of Attorney and Healthcare Power of Attorney can be updated prior to the finalization of the divorce.  In order to update these documents, the previously drafted documents are revoked by drafting new documents which select a trusted individual of the party to serve as the new agent.

Estate Planning Considerations in a Divorce | Death of a Spouse

If one of the party passes away prior to a divorce becoming official, the surviving party will inherit from the deceased party as if they were loving, happy spouses regardless of the pending divorce.   Due to this, in some cases, while the parties are separated, it may make sense to revoke the will that was put into place during the marriage for the time of separation.  This is generally the case if each party has each other listed as their respective primary beneficiary.  Revoking a will that lists the one party as the primary beneficiary will allow for the state’s intestacy laws to apply.  The intestacy law of your state may be preferable to a will because in most states the intestacy laws only provide a portion of the estate to the spouse instead of leaving everything to the spouse, which is typically how a married person’s will is set up. In most states, the law does not allow for an individual to disinherit their spouse, so drafting of a new will or revocable trust which does not provide for the other party will not be honored until the parties are officially divorced.  Therefore, each party should have an updated will or revocable trust drafted as soon as the parties are officially divorced.

Contact our experienced Arizona Estate Planning Attorneys at (480)947-4339.

Thanks to our friends and contributors from Rick Linn, LLC for their insight into estate planning considerations in divorce.

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