Newly Posted Article - "Estate Planning and Divorce"
[March 3, 2009]
Kristin Wildman Shirahama

If you are considering divorce, or have already filed for divorce, you should review and possibly update your estate plan. For one thing, you may have named your spouse as a beneficiary under your current Will or Trust, and the spouse may inherit if you die before the divorce is final. This possibility may be inconsistent with your wishes, so you should consider an update.

You may also want to update your Durable Power of Attorney. With your Durable Power of Attorney, you have named an individual - quite possibly your spouse - to manage your legal and financial affairs in the event that you are unable to manage them yourself due to your incapacity or unavailability. Your selection of an individual in whom you have confidence, and your definition of the nature and scope of his or her authority, essentially allows you to project a degree of control over your circumstances beyond the time when you are able to control them directly. You want the individual you name to do what you would have done under the circumstances, were you still able. Your spouse may no longer be that person if you are considering divorce or are already a party to divorce proceedings.

In addition to a Durable Power of Attorney, you should have a Health Care Proxy. With a Health Care Proxy, you appoint an individual to make health care decisions for you, including end-of-life decisions, if your treating physician determines that you lack capacity to make decisions. The individual’s responsibility is to make medical decisions that are consistent with what he or she believes you would have wanted under the circumstances, based on your beliefs and preferences, and not on the basis of his or her own.

A companion document to the Health Care Proxy that you should also consider is a Medical Directive, sometimes called Living Will, and is a statement of your end-of-life preferences. If your spouse is currently serving as your health are agent, you may want to consider other choices.

You should discuss with your lawyer the changes that you wish to make to your estate plan. There are certain actions you cannot take while divorce proceedings are pending, because an automatic restraining order is placed on the assets of both parties. Once the complaint is filed (if you are the plaintiff), or once the summons and complaint are served (if you are the defendant), you cannot transfer or gift assets to individuals or trusts. Also during divorce proceedings you cannot change the beneficiary of any life insurance policy, pension or retirement plan or account, except with the written consent of the other party or by Order of Court.

Although there are some restrictions on the actions you can take during a divorce, there are measures you can take to protect yourself and the individuals whom you want to inherit your estate. For more information on the specific actions you should consider, speak with your attorney.

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