“Divorce is not easy. It’s not only a difficult time emotionally, but you also have a lot to do and many decisions to make,” Christine Fletcher cautions in Forbes. The problem, as John J. Scroggins laments in the Journal of Estate and Tax Planning – “Most divorces are largely unplanned, disorderly events…emotion, not reasoned self-interest, often governs the decision process”.
While it quite often happens that our attorneys at Geyer Law are called upon to draft estate planning documents for second marriages, we know how important it is for estate planning to happen in conjunction with the divorce itself (whether or not a second marriage is contemplated at that point).
Basic estate planning “re-do” areas include:
- revoking the will and trust and creating new documents
- naming a new executor, if the soon-to-be ex is the present executor
- designating new beneficiaries and contingent beneficiaries on life insurance and retirement plans
- naming guardians for minor children (in the event the now-spouse is not the parent)
- redoing power of attorney and healthcare power of attorney documents
It’s interesting that the long checklist provided by findlaw.com, named “Issues to Discuss with Your Divorce Attorney”, includes numerous overlaps with estate planning. Planning for children, as just one example, includes decisions about beneficiary designations and college education funding. Property issues include retirement benefits and compensation for contributions as a homemaker, while the list of spousal support issues includes decisions about COBRA health coverage.
Because of all these details, divorce is often not only time-consuming, but expensive. One question we’re often asked at Rebecca W. Geyer & Associates is whether soon-to-be ex-spouses can share our services. The answer is generally no. As explained in lawyers.com, professional ethics prohibit attorneys from representing two clients with conflicting interests — and that includes divorcing spouses; however, since updating estate planning is usually not contentious, it is possible for the same attorney to prepare estate planning for both spouses of a divorcing couple if both parties consent to the representation in writing.
Even absent a second marriage, divorce dictates an estate planning redo!
– by Rebecca W. Geyer