Winsor Law Group Blog

For better or for worse, and in sickness and in health, divorce happens. Divorce dramatically affects the estate plan, even if the marriage dissolved is not your own.

Perhaps more than any other of my five estate plan trigger events (Remember BMDDD, Birth, Marriage, Death, Divorce, and Disability), divorce creates an urgent estate plan review.  If the estate plan were compared to the human body, a pending divorce is like an early stage cancer; but in addition to killing the estate plan, the divorce-tumor survives on its own and can continue to consume the host.  Cancer is a four-letter word in my family. I hate the disease with a passion; and although I hate to use it as an example, the comparison is spot-on.  Estate planning around a divorce is that serious, and is more and more in demand.

Although the timing and the idea of meeting with yet another lawyer may feel overwhelming, I cannot stress enough how important it is for those affected by a divorce event to contact an estate planning attorney to discuss/review their current plan.  This follow up meeting, or initial consult, should not be delayed.

Here is a short list of some of the potential concerns that a Divorce creates for an estate plan:

• many estate plans utilize marriage related tax provisions and planning structures, removing this foundation feature creates core structural defects in the plan.
• In addition to obtaining a fair division of the marital assets, both spouses need to consider whether certain assets are more efficiently allocated, for tax and planning reasons, to a particular spouse.  For example, the spouse who will be in a higher income tax bracket may be harmed by taking assets that produce regular income after the divorce.
• Both spouses will need to replace their primary Agents in their powers of attorney if the have such documents executed.
• Beneficiary designations on certain assets (like life insurance) may need to be updated immediately.
• For adult children of divorcing parents: because the estates of either parent no longer will be used to support the other parent, inheritance may be realized sooner than anticipated.  Does the child’s estate plan address this circumstance?
• Here is another:  If one, or both, parent remarries, what happens to the estate assets if the new spouse survives the child’s parent?  Can the former spouse have any control over this circumstance?
• What role will child support payment obligations play in the estate plan?
• Similarly, if the primary caregiver parent dies unexpectedly, how does that event affect the surviving parent’s estate plan, their future living circumstances, and their financial and  child care obligations created by the divorce?  Does the deceased parent have any control from the grave over these considerations and circumstances?