How Your Ex-Spouse’s Remarriage Can Affect Your Washington Estate Plan

Depending on where you are in life and the emotions you are carrying, learning that your spouse is remarrying can be a shock to the system. It can also feel unsettling, given there is someone new in the mix, meaning another inheritor and person who can exert influence. The ripple effects can impact you and your children, if you have them. While you can’t control your spouse’s choices as to whom they include in their will as a beneficiary or appoint to an estate planning role, there are a few steps you can take to protect yourself and your children.

Talk to Your Ex

If you are lucky enough to learn about your ex’s plans before they tie the knot, and you have a workable rapport with them, consider first approaching them to see if they will talk to you about what they have in mind for their estate plan, given their upcoming nuptials. Not everyone will have thought about it, and especially if you have children, you will want to make sure that they remain protected. This is even more important if your children are still reliant on support from them, whether for health insurance, college, expenses, or general support.

Every divorce agreement is different, and while life insurance is sometimes used as a vehicle to cover any unpaid maintenance should the paying spouse die, for example, unless you own the life insurance policy or have access to it, the reality is that your ex could make changes without your knowledge, changes that might run contrary to your and your children’s interests.

The same can be said of an asset you have an interest in under your divorce agreement, but that remains titled in your spouse’s name. If your spouse wills that asset to their new spouse, you would have to take additional legal steps to ensure you receive your share before a sale. This is rarely timely or simple, as well as countless other potential situations that could come up. However, there is a way to protect yourself, and that is to …

Hire a Family Law Firm for Your Divorce With an Internal Estate Planning Department

There are two critical times when you should hire a divorce and estate planning team to address issues arising from an ex’s remarriage.

During Your Divorce

Before you would ever be faced with relying on your ex’s estate plan, with or without the presence of a new spouse, your divorce lawyer should consider what could happen in the event your spouse remarries. This is not a stretch, as two-thirds of Americans remarry following a divorce. At a minimum, your ex will likely want to make provisions for their new partner in their estate plan, and while you won’t have any control over their decision-making, you want to be as proactive as possible in doing what you can to protect yourself and your children.

The last thing you will want is to be in a position where you must rely on your ex’s new spouse should your ex-spouse pre-decease you or you pre-decease your ex. When you work with a divorce lawyer and estate planning lawyer concurrently, especially when you are able to enlist the services of a law firm that houses both departments, it becomes much easier for your team to align divorce provisions with future estate planning concerns.

The time when you are negotiating your divorce agreement is your best opportunity to negotiate issues pertaining to your ex’s estate plan, including how life insurance will be utilized to protect an unfulfilled award due to their death. It is also the perfect time to address your own estate plan as it exists during your divorce and then again after.

After Your Divorce

If your estate planning isn’t in order when you get the big news or leaves you and your children vulnerable, don’t panic. As soon as you know your spouse is remarrying, or as soon as possible thereafter if they’re already married, contact an estate planning and family law legal dream team. 

Together, an estate planning attorney and divorce attorney can review your existing estate plan in the context of your divorce agreement and take affirmative steps to protect you and your children should they recognize any vulnerabilities that exist in light of your ex’s remarriage. In either scenario, here’s what a family law attorney and estate planning attorney will consider. 

Decision-Making Roles in Your Estate Plan

Your greatest area of control lies in what you do with your own estate plan during the divorce process and then again after your divorce becomes finalized. First and foremost, you will want to remove your ex from any position where they could have decision-making authority should you become incapacitated.

Most notably, you will not want them making life and death decisions about your health and well-being, particularly if they could be influenced by a new partner or spouse. The same is true for HIPAA access and powers of attorney, both medical and financial. Be careful about leaving your ex access, as your estate plan may have been drafted this way when you were married. 

While you cannot make changes to your estate plan that would affect assets–joint or separate, you can make changes to who fills these critical estate planning roles during the divorce process. Similarly, you may also change who the executor of your will is, especially since it was likely your spouse when you were married.

Guardianship of Children

As for guardianship of your children should you predecease their other parent, in most cases, you would not be able to appoint a guardian who would supersede that parent’s parental rights. If you are concerned about what would happen should your ex not be able to fulfil their role, whether due to death or another circumstance, you can name a contingent guardian.

Beneficiaries

As noted above, until your divorce is finalized, do not change the beneficiary of your estate from your spouse to someone else without first confirming with your attorney that such action is permissible. A number of jurisdictions enter financial restraining orders at the beginning of divorce and legal separation cases, which strictly prohibit transferring or in any way altering the other party’s financial rights. And in Washington, this includes not just community and joint property but also generally separate property.  These restraining orders typically remain in place until the case is fully concluded.  

Once your divorce has concluded, meaning you are legally divorced, you can change the beneficiaries in your estate plan to whomever you want, including your children. Likewise, you may name trustees for any trusts you set up after that time or for trusts awarded to you in the divorce.

A caveat: Beneficiary designations in your will will not override beneficiary designations that are payable on death. These can and often include retirement plans and life insurance policies, so be sure to remove your ex-spouse from those policies if that is your wish.

Find a Seattle Divorce and Estate Planning Law Firm

Given how closely tied divorce issues are with estate planning issues, it’s not only prudent but also practical to consider your estate planning options both during the divorce process and then again after, especially if you learn your spouse is remarrying.

At Elise Buie Family Law, our Seattle family law attorneys work closely with our estate planning attorneys to take a coordinated approach to your divorce and post-divorce life. Estate planning is often part of rebuilding stability after divorce, and addressing it early can reduce uncertainty down the road, including when a spouse’s remarriage is on the calendar. Contact us today or schedule a time to speak.