Estate plans prepared for married couples vary in complexity and detail: the revocable trust and will typically provide that upon the death of the first spouse, the surviving spouse will serve as successor trustee of the Revocable Living Trust, and Executor of the Estate. This usually becomes the exact opposite intended when divorce is initiated. It is never too early in the divorce process for a client to review and revise his or her trust and will. Also, it is very important that a divorcing spouse review and modify previously created Power Of Attorney, Health Care Proxy, beneficiary designation on life insurance policies, and paid on death (“POD”) account provisions. Documents that made sense during marriage are inevitably no longer appropriate once divorce has commenced. A divorcing spouse should never rely on a prenuptial agreement or state law to correct a previously executed estate plan.
Even if there was no formal estate planning in place, each spouse possesses certain rights by state law as it relates to the other spouse, i.e. the right to receive a share of the spouse’s estate, or serve as guardian. Many if not all of these rights should be addressed in an updated estate plan. During a divorce, the legal and emotional costs increase, the natural tendency is to postpone making other important life decisions; unfortunately too many clients postpone and then forget. Although some planning matters can only be addressed after the marriage is dissolved, the divorcing party should work with the estate planning attorneys as early in the process as possible to address those issues that can be addressed during the divorce and then finalize those issues that must be addressed after the divorce is concluded.