I recently consulted with a client about a potential divorce action and during our meeting I became aware that the client had developed an extensive estate plan which we would have to consider in evaluating how to proceed in a divorce action.
I thought I would share with you some of the key points / concerns about estate plans that clients and other family law attorney’s should consider in the context of a divorce action.
1. A Divorce Revokes All Bequests in Client’s Will to an Ex-Spouse The effect of a valid divorce judgment means that your will is read as if your ex-spouse predeceased you. This means that if you (client) left your baseball card collection to your ex-spouse in your will and you subsequently get divorced then your baseball cards will either fall into your residuary estate or pass to a different beneficiary. To put it another way, a judgment of divorce has the effect of invalidating those provisions only that relate to your ex-spouse; all other provisions of your will remain valid and enforceable. Best Practice: Consult with an estate planning attorney and revise your will, trust, health care proxy, etc. immediately following the entry of a divorce judgment.
2. Supplemental Rule 411: Automatic Restraining Order: Upon the filing of a Complaint for Divorce the filing / moving party is prohibited from engaging in certain conduct which, in summary, would otherwise deprive or encumber a spouses’ interest in certain property. This same restraining order goes into effect when the non-moving party is served with the divorce complaint and summons. Best Practice: If an action for divorce has commenced review Rule 411 prior to transferring, conveying or otherwise modifying any life insurance, pension or retirement account that may otherwise be part of an estate plan.
3. Prenuptial and Postnuptial Agreements: A Prenuptial (executed prior to marriage) and a Postnuptial (executed subsequent to marriage) Agreements allow parties to structure their rights and interests in the event the marriage is terminated by death or divorce. It is critical in estate planning and in a possible divorce action, that a client notify their attorney early on of the existence of one of these agreements. Best Practice: If the client has a valid prenupital or postnuptial agreement, the client should ensure that any estate plan at least meets the requirements set forth in the agreement i.e. abiding by provisions relating to property, support, etc. The failure of an estate plan to properly mirror the terms of a prenuptial or postnuptial agreement may result the estate being dragged into a lawsuit.
DISCLAIMER: This communication provides general information and does not constitute legal advice. Attorney Advertising. Prior results do not guarantee a similar outcome.