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Estate Planning During Your Divorce

On Behalf of | Jan 8, 2019 | Family Law

Estate planning and divorce proceedings are two aspects of life that are often placed at either end of a relationship spectrum. Both are sensitive topics that often force an uncomfortable conversation, and both are frequently avoided – whether at the end of our lives, or the end of our marriage. However, these two areas of the law have more in common than you might first imagine.

Almost every married person who drafts a Will leaves their assets to their surviving spouse. But what happens if you pass away while in the midst of a divorce? Unless and until the divorce is finalized, the terms of your Last Will and Testament control. In most cases, this means that the soon–to-be ex-spouse receives all of your property. Leaving all assets to your spouse has many tax-related benefits, but it may not be right for you if you’re going through a divorce.

Assets left to a spouse are not (generally) taxable upon the death of the first spouse. Therefore, most Wills direct all assets to the surviving spouse to save taxes. If this is how your Will is written, and you pass away in the middle of a divorce, your soon-to-be ex-spouse will receive all of your property.

In Washington, a dissolution of marriage proceeding is terminated if one of the individuals dies before the divorce is finalized.  The Court views divorce as personal and can no longer facilitate the dissolution of marriage proceeding without both parties present.  If a party dies, it’s as if the divorce proceeding was dismissed – as if it never happened.  From a policy standpoint, this makes sense because the courts want people to have the ability to change their mind and cancel a divorce proceeding before it is finalized. However, if the divorce is dismissed because a party dies, the Court cannot rewrite the Will, and in most cases, all assets of the deceased spouse will be provided to the surviving spouse.

Broader implications

This could have large consequences with second marriages and children from a prior spouse.  If the surviving spouse is not the blood relative to some or all of the deceased spouses children, the Will could (depending on how it is written) give the surviving spouse the ability to disinherit children.

When going through a divorce, it is very important to have a new Will drafted immediately, one that clearly states that you are married but getting a divorce and thus expressly do not leave any assets to your current spouse.  This language must be clearly articulated in the Will or the soon-to-be ex-spouse could challenge the new Will as an “omitted spouse”.

What about cohabitation?

It is not only married persons who should consider the need for estate planning.  Individuals who cohabitate in a manner consistent with a marriage-like relationship may naturally assume their partner would inherit their belongings in the same way – as a spouse would under the law.  This is not correct. Even in a relationship lasting for decades, the law in Washington does not grant your domestic partner any rights to your personal property, if you do not have a Will in place.

Making sure your wishes, and those of your domestic partner, are reflected in a Will may be of even higher importance under these circumstances.  However, in the event your co-habitational relationship ends, the law does not operate in the same way as with married persons, and any distribution you have made to your ex-partner would be enforced.

Bringing it all together

Protecting assets and heirs is a hallmark of estate planning and marriage dissolution.  When going through a divorce, a new Will protects for your family and assets.