Going through a divorce is very traumatic. There can be hard feelings. There are dozens of difficult decisions to be made and papers to be signed. It creates a serious disruption of your life and it may take you some time to recover. During this time of trauma and disturbance some things may be overlooked. Tragically, one of those often overlooked details is your estate plan.
Your estate plan is meant to keep you in control of your finances and healthcare during times of mental incapacity and death by allowing you to specify who will assist you. If you do not update your plan during or soon after your divorce you may no longer be in control. Your original plan was created under a specific set of circumstances that no longer exists. Maintenance and updating of your plan is necessary and critical to providing for your loved ones and ensuring that you do not leave them a big mess.
Whether you realize it or not, you have an estate plan, or at least some pieces of a plan. Included in your estate plan may be the well known estate planning tools - the Will, trust, and durable powers of attorney. Also part of your estate and plan are the less obvious life insurance policies and retirement accounts.
Should I Do Anything Before the Dissolution Is Final?
If you die before the divorce is final and you do not have a formal estate plan, your spouse is entitled to your one-half of the community property and up to 100% of your separate property. If you have living children, living parents, living siblings, or living nieces or nephews your spouse is entitled to the community property and one-half to three-quarters of your separate property. Life insurance policies and retirement accounts are controlled by beneficiary designations, and if you are like most people, your spouse is probably named as the primary beneficiary.
If you have a formal plan in place (Will, Trust, Durable Powers of Attorney) the plan will control. But, you have most likely named your spouse as your primary beneficiary, trustee, personal representative, attorney-in-fact, and agent.
If you no longer want your spouse to share in your estate, you will either need to amend your estate plan or create a formal plan. You should also change the beneficiary designations for your retirement accounts and life insurance policies as soon as possible. You will need your spouse’s consent if you do not name your spouse as the primary beneficiary for your retirement accounts.
I Didn’t Do Anything Before the Divorce Was Final - What Do I Need To Do Now?
Minor Children and Guardianship
If you do not have a trust and you have young children, now may be the right to time create one. If something should happen to you, either a mental disability or death, your former spouse will have full custody of the children. If you leave assets to your children and they are minors you create two problems.
First, someone will need to petition the court to become guardian of the estate to control the assets. Second, that someone is likely to be your former spouse. By leaving your assets in a trust for your children you control who manages the money and the need for a guardianship is eliminated.
Wills and Durable Powers of Attorney
The state of Washington has helped you out when it comes to your Will, Financial Durable Power of Attorney and Health Care Power of Attorney. Upon divorce, your Will automatically treats your former spouse as predeceasing you and any gift to the former spouse or naming of the former spouse as your executor will be revoked. The same is true for your Financial Durable Power of Attorney and Health Care Power of Attorney. If you named your former spouse as your attorney-in-fact or agent that nomination will be automatically revoked.
While these automatic revocations offer protection, many times an alternate to your former spouse has not been named. This can create uncertainty and chaos for those you leave behind and in the case of a mental disability, may create the need for a court supervised conservatorship. To avoid these problems you should have your Will, Financial Durable Power of Attorney and Health Care Power of Attorney redrafted. In addition, because of the divorce your goals may have changed for your estate plan. These changes should be reflected in a new plan.
Trusts and Other Estate Plan Pieces
Washington also has an automatic revocation for the transfer of some non-probate assets like beneficiary designations. However, this provision should not be relied on. If you you look at the law that creates this revocation you will see many exceptions to the rule. Additionally, third parties who are unaware of your divorce are not liable for transferring your assets to your ex-spouse. Remember, the beneficiary designation controls. You should immediately change the beneficiaries of your life insurance and retirement accounts.
If you have a trust, the trust remains in effect, and if it is a joint trust, your former spouse remains as a trustee of the trust. Even if your trust provides language dealing with divorce or the automatic revocation law can be applied to your trust, you should revoke the trust and create a new trust tailored to your new situation and goals.