Revising Your Estate Plan While Going Through a Divorce
Is It Recommended to Update Your Estate Plan Before Filing for Divorce?
Yes, in ideal world you would want to update your estate plan before filing for divorce. However, that only works for half of the people involved. Because one person is filing the divorce petition and the other person doesn’t necessarily know when a petition will be filed. It is a point of caution for everyone.
If you think there is even a slight possibility that a divorce may be on the horizon, then it may be time to make changes to your estate plan. If you fail to do proper planning, your spouse may get the benefit of having time to make arrangements and changes to their estate plan while you will be restricted in what changes can be made to your estate plan.
Therefore, it’s in a person’s best interest to make updates to their estate plan before the divorce is filed. You may not be able to make all the changes you would want, but once the divorce is finalized you can update your estate plan so it’s reflects exactly want you need and want.
What Are the Downfalls of Destroying My Will During a Divorce?
Many people become restless or irrational during a divorce. Due to the emotional toll that a separation and divorce has on a person they may take actions such as tearing up their current will without realizing the true consequences that can occur from such an action. If someone dies without a last will and testament their estate will be distributed according to the state intestate laws.
Intestate is a term that means someone has passed away without a will in place. Generally speaking, the intestacy laws of any given state are going to say if a person is married, the spouse is entitled to a portion of the deceased’s estate. Here in Georgia a spouse is always entitled to at least 1/3 of the estate and in some situations more. By destroying a will, the testator may be giving their spouse a larger portion of their estate. The actual distribution will just depend on how the will is drafted and the applicable state laws. This is why we recommend speaking with an estate planning attorney before taking any drastic measures in regards to your estate plan.
Can a Divorcing Couple Have Separate Attorneys to Handle Their Estate Planning?
The short answer is, it depends. The question isn’t could it be done, but it’s more so should it be done. Attorneys have to be concerned about the conflict of interest that can easily arise, especially during a divorce. If a couple visit an attorney and says, “We need to update our power of attorney and wills. We’re getting divorced and have agreed on everything.” Then, there may not be a conflict of interest since the couple has amicably agreed on all details of their estate plan.
The attorney will have to notify both parties of the potential conflict of interest and advise them of the potential downfalls of using the same attorney. Generally, an attorney wouldn’t represent both parties to the divorce. The reason is because unforeseen issues can happen during a divorce that can result in the parties become adversarial. If this occurs, one attorney will not be in a position to give proper legal advice to both the parties. The attorney representing both the parties would have to essentially walk away from both parties due to knowing too much information. The attorney would know each side’s position and couldn’t legally or ethically give advice on those matters.
To Revise Your Estate Plan in a Divorce, call the Law office of Brian M. Douglas and Associates, LLC for an initial consultation at (770) 933-9009 and get the information and legal answers you’re seeking.
