There are a lot of financial decisions to be made in a divorce, and one very important one is what to do about your estate plans. We asked Jennifer Cowan, an estate planning attorney in San Rafael, CA, to share information with us about this topic. Jennifer holds an LL.M in Taxation (graduating with Honors) with an emphasis in estate and gift taxation from Golden Gate University School of Law.
I know it is common during a divorce to be so overwhelmed that estate plans often get overlooked. But it really is something you want to start paying attention to during the divorce process. Sometimes divorce takes awhile, so don’t wait for it to be finalized.
If you have a trust or a will already in place, the first step is to revoke it and then redo it naming a different agent (unless your want your spouse to still be your agent). If you don’t have a trust or a will, then you’ll probably want to create one. In California for example, if no estate plan exists, the spouse will automatically inherit any community property and half of all personal property. If this is not what you want to happen, then I would advise you to create a trust or will that clearly states your wishes.
Divorce lawyers will usually recommend that their clients see another lawyer who specializes in estate planning when they want to create or revoke/change a trust or will. There are specific rules to follow about what you can and cannot do with regard to a trust while going through a divorce, and an estate planning attorney will be your best resource for getting things done properly. For example, you can rename your agent and rename your next-in-line. You cannot, however, change beneficiaries until after the divorce is finalized. You cannot fund your trust during the divorce, but you can state that whatever assets your receive as part of the divorce agreement will go to the trust.
If you have previously named your spouse as your agent for a Durable Power of Attorney for health care, you may want to consider whether or not you still want him/her to make health care decisions for you if you become incapacitated. If not, you should redo the legal paperwork to name someone else as your agent. This is something you do not have to wait until after the divorce to do.
There’s so much to think about and so many decisions to make in the divorce process. I get it. But these estate planning and powers of attorney issues need your attention, too. Just start thinking about them, and then get yourself ready to take care of them. You can learn more about estate planning and divorce by visiting my website.
The professional divorce facilitators who are part of the Divorce With Dignity Network understand that divorce can be overwhelming and distressing. We are here not only to help you with the logistics of the divorce process, but to provide you with referrals to other professionals who can assist you with various aspects of divorce, such as estate planning attorneys, counselors, coaches, etc. With this holistic approach, we can help you get through your divorce with the support and dignity you deserve. Come visit our website to see how.
The author of this blog is not an attorney and the information contained in these blogs should not be considered legal advice. The information provided here is based on the experience of the author and some of her clients whose actual names are not mentioned. Do not hesitate to seek the advice of an attorney if you have any legal questions.