Global Family Law Services

‘Til death do us part’ not as long as you think

| Mar 15, 2012 | Divorce, Estate Planning, Power of Attorney, Property Division, Wills / Living Wills

This article originally appeared as a column for the Cleveland Jewish News.

When a couple gets married, it is common to do a bit of estate planning. A person, for example, might make his or her spouse the beneficiary on any life insurance policies and retirement plans. A joint and survivorship deed on any real property might be executed. The couple might also execute reciprocal healthcare powers of attorney, naming the other as the person who can make medical decisions should he or she become incapacitated.

When that couple has children, they might do some more estate planning. They might take out new life insurance policies to ensure their children will be provided for. They might decide it is time to write wills. And they might select a person or people to be named guardian of their children should the unthinkable happen and they die prematurely.

Estate planning is, generally speaking, planning for what happens to your worldly possessions upon your death. Death, particularly one’s own, is something that no one likes to think about. But barring some scientific breakthrough, it is unfortunately inevitable. What happens next, though, need not be. Most people consider their estate planning when major life events happen – marriage, births and deaths. Should you find that divorce is also going to become part of the time line of your life, don’t forget to revisit your estate plan and revise it appropriately.

After a divorce, wills may need to be changed. Generally an ex-spouse is automatically written out of a will by operation of law, but other items may need to be addressed, such as who will become the guardian of your children if they are minors at the time of your death. And, depending on how contentious the divorce was, there is a reasonably good chance that you no longer want your former spouse to be named as the person authorized to make important medical or financial decisions on your behalf. So, you may need to execute new healthcare and financial power of attorney forms. Real property should have been distributed as part of your final divorce award or settlement, but you should make sure any necessary deeds get properly prepared and filed so that the property is titled the way you intended it to be. Any trusts established by you or on your behalf should similarly be reviewed and revised as necessary, as should custodial accounts. And beneficiaries of life insurance policies and retirement plans may need to be updated.

Potentially more problematic is what happens in the rare event that an individual dies during the pendency of a divorce. For purposes of the probate laws, you are still married until the day you aren’t – that is, you are still married until the day your divorce decree is signed. And, as much as the divorcing parties wish differently, divorces do not happen overnight. In Ohio, a marriage simply cannot be terminated in less than 30 days, and as a practical matter, it is more likely to take several months to a year or more.

If you are considering filing for a divorce, you may find it beneficial to ask your domestic relations attorney about steps you can take to manage your estate plan before you file, as once the divorce proceedings have begun, you will be limited by both court order and law as to what you can change.

You should not – and the courts will not allow you to – use this as a tool to hide marital property from your spouse. But if you, for example, have children who were not born of the marriage, have a terminal illness, or are about to undertake an especially dangerous action such as contracting to work in an active war zone, it may be particularly important for you to consider these issues.

No matter your situation, a conversation with your attorney and a little planning can ensure that your loved ones will be taken care of, while those you no longer love will not unintentionally benefit.

*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.