What is the Effect of Divorce on Estate Planning?
May 1, 2021 | View PDF
There are various issues relative to estate planning and divorce. There are instances where an ex-spouse may continue to be entitled to your assets, times when they are automatically disqualified from assets and/ or disqualified from acting as a fiduciary and then there are changes in the law. Finally, there may be times that you may wish for your ex spouse to inherit from you even though by law that might be successfully challenged.
With your Last Will and Testament, upon divorce your former spouse is considered by law to have predeceased you. While that makes things convenient for you immediately following a divorce, it is wise anytime you have a major life change to have a new Will done. You may have named your ex-spouse to act as your Personal Representative or as a Trustee, so you will want to name another individual to act as your Personal Representative and name a successor as well.
However, I have had clients who have either maintained a close relationship with their ex spouse or have minor children together and really want their ex-spouse to have a least a portion of their assets upon death. The language needs to be specific that it is the intent of the testator or testatrix that they want their former spouse to have something from their estate, if that is what they desire. With a legal presumption that a former spouse has predeceased you, a legal challenge by successor beneficiaries would probably be successful. And in the throws of the emotional turmoil of a divorce if the other spouse decides to kill you thinking they will ensure inheritance, one spouse that kills another (besides going to jail) is also precluded from inheritance.
What about the other major components of a legal estate plan? If your former spouse is named as your agent under your Power of Attorney (financial or health) then their power as agent is automatically revoked or if they are named as proxy under your Advance Directive (Living Will) then that power is also revoked. After all if the Advance Directive kicks in due to a medical condition the ex spouse might be saying, “Let them go, they always said they weren’t afraid to die :) “.
With a Trust it can be more complicated as to what form of Trust exists but it should definitely be addressed during the divorce.
Historically, insurance accounts that name the former spouse as a beneficiary remains as is and has been consistently upheld by the Alabama courts. I have always counseled my clients on the effect of these policies. However, a change to the law as of 01 September 2015 now aligns itself more with the effect of former spouses and Wills. If you have a life insurance policy naming your spouse as beneficiary and later are divorced then the spouse automatically loses that benefit, and that is probably what you would want. However you must consider who your successor beneficiary(ies) is/ are and whether they can outright take upon your death, i.e. they cannot if they are under age 19 and whether you really wanted your former spouse to remain as a beneficiary. I think this will be interesting for the courts since it is a contractual obligation and I believe that insurance companies will want to otherwise pay to a former spouse that remains as beneficiary unless directed otherwise by the court.
While most real property deeds include spouses “with rights of survivorship”, a divorce that does not address the title to real property would continue to have both former spouses on the deed but as “tenants in common” which means no rights of survivorship and could eventually mean upon the death of a spouse that a former spouse and a new spouse could have a 50/50 share of the real property. I’m sure that would not be good.
If you are unfortunately staring down a divorce make sure that in addition to your assets that your estate plan and insurances are considered and that you speak with attorneys proficient in those areas. As always if you do not have an attorney, ask a trusted friend or family member or contact the Alabama State Bar, Lawyer Referral service.
Ronald A. Holtsford, Esq., Ronald A. Holtsford, LLC, 7956 Vaughn Road, Box #124, Montgomery, AL 36116, (334) 220-3700, firstname.lastname@example.org
This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.”No representation is made that the quality of legal services performed is greater than the quality of legal services performed by other lawyers.”