Estate Planning and Divorce– Important Considerations

Filing for divorce does not change any existing estate documents, nor does it end a spouse’s rights to the deceased spouse’s assets if the will leaves anything to the surviving spouse.  If a spouse dies during a divorce process without having revised their estate planning, it is as if the divorce was never filed.

If you pass away during a divorce and do not have existing estate planning in place, your spouse automatically inherits all of your community property and from ¼ to all of any separate property.  If you become mentally incapacitated, your spouse may also obtain decision-making authority over your finances and healthcare decisions regardless of the fact that you are in the middle of a divorce.

For the these reasons, we recommend prompt estate planning for persons going through a divorce or who are divorced.

What is Estate Planning?

Estate planning involves planning for the possibility of mental incapacity while still alive and distribution of your assets at death. You should prepare or change your estate planning when there is a life-changing event such as a divorce, birth of a child, or death of a spouse.

The Estate Planning Process

If we are already handling your divorce, we already have all your financial information and know your long-term goals. As a result, the process of completing your estate planning documents is very straightforward.

The following steps summarize the process:

  • Complete the Estate Planning form Questionnaire;
  • Send completed form by mail, e-mail, or fax;
  • Schedule an appointment with an attorney;
  • Attend conference with attorney to discuss estate planning needs and sign flat fee agreement;
  • Attorney and staff draft estate planning documents for review;
  • Review and revise estate planning documents;
  • Schedule an appointment to sign the final documents;
  • Attend a will-signing in our office to sign the final documents.