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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.