Estate Planning and Silent Divorce: How to Protect Yourself

Subtle shifts in a marriage can occur long before either spouse says out loud that they’d like to separate. Frequently described in the media as a “silent divorce,” a couple’s legal and financial lives can, along with emotions, begin to feel misaligned as the relationship devolves. This is especially true regarding certain aspects of estate planning, an integral consideration in Washington divorce that people tend to overlook at first because they believe they are powerless to do anything about it before their divorce becomes final.

Yes, some elements of an estate plan must wait until a couple is officially divorced before they can be changed, discussed in more detail below. However, that doesn’t mean you cannot be proactive about your estate plan and the parts you can change now. If you are in the midst of a silent divorce and would like to understand your estate planning options better, this blog post is for you.          

Why Estate Plans Can Feel Misaligned During a Silent Divorce

An estate plan can feel as though it no longer reflects your wishes during a silent divorce for various reasons, the first and most obvious of which is that you no longer see a long-term future with your spouse. The second is that you no longer trust them to have your best interests at heart.  

When you no longer see a future with your spouse, you may be concerned about protecting your assets so that they don’t end up in their hands, since many married couples name each other as primary beneficiaries. While that is a legitimate concern, until you and your spouse resolve in your divorce how your assets will be allocated, you cannot make changes to your estate plan that could affect how assets your spouse may be entitled to under the marriage are distributed. In other words, you can’t make bequests for property that doesn’t legally belong to you yet individually. 

Washington is a community property state. During marriage, most property acquired is owned by the couple, not by one spouse alone. Because of that, one spouse cannot use a will to give away the other spouse’s share of community property. The issue is not that changing a will automatically invalidates it, but that any provision attempting to dispose of community property beyond your own half would not be enforced. Courts would simply disregard that portion.

This may not feel fair, and you may feel vulnerable financially. However, you don’t want parts of your will disregarded, and making such changes can cause that to happen should you die prior to your divorce being finalized. Though a Washington court won’t generally invalidate a will, having parts of it called into question can cause unnecessary disputes and delays in its disposition.

After a divorce, Washington law automatically revokes many spousal beneficiary designations under state law. However, you should still speak to a Washington estate planning attorney at that time to make sure your estate plan is consistent with your post-divorce wishes. 

A family law firm like Elise Buie Family Law, where divorce and estate planning lawyers work together, streamlines the resolution of issues. Given how family law and estate planning overlap, a dually-focused team can help you create both a divorce agreement and an estate plan that hold up at every stage of the divorce process, including before it officially begins.     

What You Can Update Before a Divorce Is Filed

A typical estate plan consists of a few key documents: a will, a medical power of attorney, a financial power of attorney, a living will, a HIPAA authorization, and, potentially, a trust. Depending on your and your family’s situation, you may not need a trust, or you may need more than one, as the types and their uses vary. Keep in mind that a revocable living trust does not override community property rules, so if you have one and are considering making changes to it, understand that you cannot deprive your spouse of their community interest. A Seattle estate planning lawyer can help you understand your rights and responsibilities under Washington state law/ 

Notwithstanding the above, even though during a silent divorce you cannot make changes to your estate plan that could affect marital property, you can make changes to who you would want to be responsible for making medical decisions on your behalf should you be unable to via your medical power of attorney, and who you would like to have access to certain financial accounts, such as those belonging solely to you that have been outlined as separate property via a prenuptial or postnuptial agreement. 

Many married couples naturally give their spouse powers of attorney for medical and financial matters. However, if you are no longer comfortable with that, including your HIPAA authorization (which outlines who has access to your medical records), you can choose someone else, even before divorce, to fulfill those roles. Keep in mind that they can be different people fulfilling these roles. The goal is to select those who will be comfortable and proficient, especially under pressure. It is thus beneficial beforehand to let those individuals know you are thinking about giving them these responsibilities in your estate plan, just in case they would like to decline. 

How to Protect Yourself While Thinking About What’s Next

Plan, plan, and plan some more. Especially if you find yourself going through a silent divorce and anticipate separating from your spouse officially, it’s a plus to organize your finances as best you can. You may not have access to everything you need, especially if you are married to someone displaying narcissistic qualities who hasn’t given you access to some specifics about your financial picture, but recognizing what’s missing is helpful. Your Washington state divorce lawyer can gain access during the discovery phase of your divorce to documents once “off-limits” to you. 

Planning for a silent divorce is also more effective when you arrange to speak with a law firm that employs both family law and estate planning attorneys. This way, you are positioned to take a comprehensive approach to your divorce should it come to fruition, or effectively strengthen your marriage and your position in it. 

Find a Seattle Family Law Firm That Prioritizes Estate Planning in Divorce

The prospect of a divorce, especially a silent one where communication between spouses is at a minimum, can feel uncertain. At Elise Buie Family Law, we have extensive experience navigating quiet divorces, high-conflict divorces, and the challenges that arise in those divorces that fall somewhere in between. Contact us today or schedule a convenient time to speak.