Consider New Estate Planning Documents During A Divorce
Divorce can be stressful and emotionally exhausting. It can be overwhelming to think about your estate planning documents. There can be several unintended consequences, such as death or incapacity before a formal divorce decision is recorded.
In this article, we examine the possible outcomes of divorce procedures. When going through a divorce, you may want to hire a New Jersey estate planning lawyer to review and possibly revise specific agreements.
Table of Contents
Possible Scenario 1: Your Ex-spouse Could Inherit Your Assets
The person’s last testament will determine the distribution of their probate assets. Many married couples write “sweetheart Wills” leaving their assets to each other. Nearly half of adult Americans do not have a Will. If a New Jersey person dies without a Will, intestacy laws govern the inheritance. Depending on the family’s makeup, a surviving spouse will inherit the majority.
Upon divorce, any preexisting gifts to your former spouse are automatically presumed void under New Jersey law, so your former spouse will no longer inherit under intestacy. The divorce proceeding becomes moot if you die before a final divorce decision is issued, and no divorce can be filed after you die.
Solution:
An easy way to ensure that a divorcing spouse’s assets are divided according to their wishes is to draft and execute a new testament prior to a divorce decree.
Even if a divorce is impossible after death, the estate can petition the surviving spouse for equitable distribution. Upon finalizing your divorce, you may be able to transfer assets you would have received under equitable distribution to your intended beneficiaries.
Possible Scenario 2: Your Soon-to-be Ex-spouse may Make Financial and Medical decisions on your Behalf
These documents name the person or people who can make medical and financial choices on a person’s behalf, among other things.
In most cases, married couples who file these two estate planning documents together name each other as the first attorney-in-fact and health care agent. In that situation, your spouse can operate in those capacities and make your financial and medical decisions until such documents are revoked and replaced.
Solution:
Preparing and effectively executing new Powers of Attorney and Living Wills before a divorce will reduce the likelihood that your spouse can make financial and medical decisions for you. Furthermore, a spouse would be unable to obtain guardianship or other legal authority on behalf of their spouse.
Also, it would be best if you informed your spouse of any previous documents that have been canceled.
