Death and Exes

What if your divorce proceeds outlive you?

by Christine P. Yates

Ms. Yates is an attorney with Tripp Scott, and is based in Ft. Lauderdale, Florida. Connect with her by e-mnail:

What is the most frightful word in the English language? Most would say “death”. A close second would surely be “divorce.”

That’s because getting a divorce is one of the most gut wrenching decisions any of us will ever make. It is a kind of death…but what if tragedy struck? Your death will be tumultuous enough for your family, never mind the ensuing court sessions surrounding your assets. An impending divorce could radically change how you want your estate divided up after you die.

There is no reason to wait until after a divorce is finalized to update and correct your planning for who inherits what. Some divorces drag on for months or even years, and on occasion, one of the parties dies before the divorce is complete – meaning that his or her estate might very well go to an alienated spouse. You might call that “death with indignity.” If you are ending a marriage, you need to take action right away to safeguard your assets. There are critical steps that you need to take immediately, even as you file for your divorce, and while it’s still in process.

You cannot divorce the dead

Remember the old legal adage: “You can’t divorce the dead.” It’s a common legal principle that death of one of the parties ends the divorce proceedings – and generally freezes in place whatever estate plans the deceased person has made, if any at all. Whom do you want deciding where your property goes if you happen to pass away during the divorce proceedings? Your alienated spouse? A judge you have never met?

I suspect you’d say instead, “I want to decide.” In that case, make sure you have drafted an up-to-date will. If you already have a will, it is likely that you previously intended to leave a large portion of your estate to your spouse. Now that you are considering divorce, perhaps you would rather leave your assets to a child, a parent, a pet cemetery – maybe just anyone but your spouse. If so, then it’s time to revoke your will and meet with an attorney.

Remember the old legal adage: “You can’t divorce the dead”

It is essential that once you begin contemplating divorce, you quickly change the beneficiary of your will or trust. But your will is just one aspect of your estate plan, and your soon to be ex-spouse is likely to be a beneficiary on many other estate planning documents as well.

Before filing for divorce, you should also modify beneficiaries for your life insurance and financial plans such as an IRA. Further, your estate plan may include a host of ancillary documents, such as a durable power of attorney or medical power of attorney, which you’ll wish to amend.

You don’t want to jump the gun: There are certain things you simply cannot change pre-divorce. For example, under Florida law, your spouse will maintain a legal right to your property through the spousal elective share, family allowance, and homestead property rights until your divorce is complete. Additionally, prior to divorce certain beneficiary designations, like your 401(k), cannot be modified to remove your spouse as the beneficiary, unless your spouse agrees to waive his/her rights.

Once you have decided that you will be seeking a divorce, protect yourself. First, meet with a family law specialist to initiate a legal divorce, so that your ex-spouse no longer enjoys spousal rights to your property. Second, meet with an estate-planning attorney to amend your estate plan.

Finally, after your divorce, it is critical to again meet with your estate planning attorney to tie up the loose ends that could not be altered until the ink is dry on your divorce decree. Hopefully you live through the proceedings to enjoy your new life. It’s bad enough when a marriage goes awry. There is no reason to let your divorce destroy your legacy.