In the early stages of this blog, I reviewed and discussed several ways that we could “Learn from Famous Mistakes,” such as failing to update an estate plan post-divorce and dying while in the midst of divorce proceedings. These issues continue to arise in my practice with great frequency, and I thought it would be helpful to assimilate some advice here for those contemplating or going through divorce and those who have recently become divorced.
Before and During Divorce
In most cases, nothing stops you from updating your estate plan prior to or during a divorce. The complication is that, in most cases, you cannot disinherit your spouse while you remain legally married. Even while divorce proceedings are pending, until the divorce is actually final, your spouse will retain statutory rights and protections. This may include a right to “exempt property” and/or a “discretionary family allowance,” as well as rights to claim a “spousal elective share” of your assets notwithstanding what your estate plan might otherwise provide. In Massachusetts, the spousal elective share currently allows the surviving spouse to receive $25,000 outright and a “life interest” in one-third of all remaining property. Particularly with respect to the life interest, these claims can add significant complexity to the administration of your estate and may thwart your intended disposition altogether.
A valid prenuptial agreement or postnuptial agreement may trump the surviving spouse’s statutory rights. In situations where either or both spouses is/are age 65 or older, a “speedy trial” may be requested to expedite the divorce. In some cases, a Motion to Bifurcate may be helpful, such that the parties are adjudicated “divorced” (terminating their statutory rights in the event of death) while putting off the support and property division aspects of the case to a later date. Depending on the circumstances of your contemplated or pending divorce, you may be well-served to speak with an attorney who is well-versed in both estate planning and family law to develop an appropriate strategy.
At the end of every divorce that I handle, I prepare a to-do list for my clients, summarizing the steps they need to take to meet their obligations under the divorce judgment. While those to-do lists vary from case to case, one item is highlighted and bolded in each and every list: Review and update your Will, Trust, beneficiary designations and fiduciary nominations. As an attorney who handles both family law and probate litigation matters, I cannot stress how important it is to ensure that your estate plan is properly updated post-divorce to address your new family circumstances and financial picture so that any remaining obligations to your former spouse are met as per the divorce judgment. Patricia Malley has written extensively on this topic, and you will find her good advice here.