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Divorcing the Estate Plan

Many couples have an estate plan in place for where their property should go once they both pass away. When a married couple executes an estate plan together, the thoughts of divorce likely do not exist. Additionally, during the difficult process of a divorce, many individuals fail to remember discussing their marital estate plan. However, estate planning documents should be updated when getting a divorce.

Something to keep in mind during a divorce process, is that the law considers one “legally” married until the judge signs the final decree of divorce. Thus, if a spouse passes before or during the divorce process and prior to the signing of the decree, the separated spouse may still have rights and be entitled to your estate.

When preparing an estate plan, the most common documents to have in place are a living trust, a last will and testament, a medical power of attorney, a financial power of attorney and a living will.

The Living Trust

The provisions in a revocable living trust that designate your ex-spouse as your trustee and beneficiary will be revoked once a divorce is finalized and a decree is signed. However, in an irrevocable living trust, the former spouse’s rights were determined during the execution of the irrevocable trust. This means ex-spouse’s benefit cannot change, unless key language is included.

The Last Will and Testament

Generally, once a divorce is finalized, the ex-spouse’s beneficiary provisions are ineffective. This means that the law treats the ex-spouse as predeceasing you but does not revoke your entire will.

The Financial and Medical Power of Attorney

Majority of married couples name their living spouse as their acting agent upon the happening of their incapacity. Until a divorce is filed, the spouse can act as the others’ power of attorney. This differs from the will and trust revocation during a divorce, as this the revocation happens upon the filing of divorce, not the signing of the final decree.

The Living Will

The agent is the living will is very similar to the role in the medical power of attorney. However, the living will is the controlling medical directive upon the death of the person.

Timing is an important factor when considering updating your estate planning documents in relation to a divorce. During a divorce there may be a financial restraining order in place throughout the case, prohibiting the parties from making financial changes. When consulting an attorney about a divorce, the status of your estate planning documents should be discussed.

Lardiere McNair is a diverse general practice firm practicing in many areas of the law, including divorce and estate planning. Our attorneys work together to provide the best services for our clients and pay attention to the specific details of each case. At Lardiere McNair, it is our goal that our client’s rights are planned for and protected.

Annemarie Gill is a Law Clerk at Lardiere McNair, LLC. To read more about our firm, please visit www.lmcounsel.com.
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