Separation or Divorce Should Lead to a New Estate Plan

Wills for each spouse are frequently created at some point for each spouse, especially if they have children. As couples are considering divorce, they may rethink whom they would like to be their beneficiaries and executors to reflect the fact that they are no longer married. In addition, they will have to perform another analysis of the gift and estate tax elements of their estate plan. Therefore, many couples who are contemplating divorce modify their estate planning documents while they are separated or shortly after the divorce becomes final.

During the period of separation, it is crucial to draft a separation agreement as soon as possible in order to set forth the spouses’ rights concerning property, debts, child support and temporary alimony. Both parties or their attorneys should draft the agreement while considering the possibility that one spouse could die before the final divorce decree is entered. In the event one party dies, couples should ensure that the agreement is binding on heirs and assigns.

Couples who are planning to divorce would be wise to amend their estate planning documents accordingly so as to express their wishes concerning any changes in the beneficiaries of their estate.

If one spouse anticipates receiving alimony and child support from the other, the recipient may wish to specify in the separation agreement that the spouse is required to purchase a life insurance policy, or keep the current one effective, designating the spouse as beneficiary. The policy should be in an amount that is adequate to pay the alimony, child support, and property distributions.

In a similar manner, the agreement may instruct one spouse to have minimum will provisions that are favorable to the other spouse and/or the children. The parties involved in a separation agreement frequently include a provision that waives the right to elect a share of the other’s estate in case one party dies prior to the entry of the divorce decree.

When making amendments to their estate plan, couples should make certain that their former spouse is not designated as their personal representative, successor trustee, beneficiary, or has power of attorney. In the event one person becomes incapacitated, someone other than that person’s spouse will be able to make financial decisions on behalf of the disabled spouse. Furthermore, if one spouse suffers an injury, or becomes ill to the point at which the spouse can no longer make medical decisions, there should be an Advanced Health Care Directive in place that names someone other than the estranged spouse to make such decisions.

During the separation period, it is likely that the attorney will draft a new will. Divorcing couples should be aware of the fact that in some states, wills created during marriage are considered void following a divorce unless they are ratified after the divorce. In this case, the rules of intestacy would govern the distribution of assets, and not the will.

Located in Merion Station, PA, Sallen Law assists clients with estate planning matters throughout the Philadelphia Main Line area including but not limited to Lower Merion Township, Montgomery County, Bucks County, Delaware County, and Chester County. Attorney Sallen is also licensed to practice in the state of NJ and serves Burlington County, Gloucester County, Camden County. 

If you would like to schedule a consultation, please contact our office at (215) 809-3900 or by clicking here.