Divorce is an emotional time. It's also a busy time. If you're currently going through a divorce in Washington State, you're probably digging through piles of papers looking for bills, statements, and other important documents. During that search, most people, however, forget to revisit their estate planning documents. They either don't think about them at all, or they have this task on their to-do list for when their divorce is finalized.
If you're one of those people, congratulations. It's true; you will need to re-examine your estate planning once you're divorced. However, while your divorce is ongoing, there are specific issues you should address regarding your estate plan to ensure your interests are protected.
Depending on the document, Washington State laws may preclude you from making certain changes until your divorce becomes final. That said, you may be able to make some before that and should be thinking about your next steps for the others as soon as your divorce is completed.
In the meantime, here are the issues you should be thinking about that pertain to your existing estate plan, even before you're divorced. The changes you make now can save you and your loved ones a lot of problems should you die or become incapacitated during the divorce process.
Power of Attorney
During (or before) marriage, it's common for couples to each create a durable power of attorney for their spouse. A power of attorney grants access to a named individual, such as a spouse, to any accounts or assets in their name to act in their stead. A durable power of attorney is a type of power of attorney. It will stay in effect after a person becomes incapacitated.
Even if your divorce is not contentious and you trust your spouse implicitly, it's still a good idea to revoke a power of attorney if you have one. Relationships can sour quickly during a divorce, and you don't want this very powerful document accessible for potential abuse by a vindictive spouse.
Health Care Proxy
A health care proxy allows a named individual to make important decisions about your treatment if you should become incapacitated. These include end-of-life decisions.
Choosing the appropriate person to be your health care proxy requires a lot of faith on your part that the person you designate will carry out your wishes. Though that may have been your spouse at one time, your soon-to-be-ex-spouse may no longer be the person you would want to make such critical decisions.
Health care proxies have become particularly relevant given COVID-19. Without one, a court can name a guardian or conservator to act on your behalf. This process can take time and become an added expense, and the choice the court makes may not be the person you would want if you had a say.
Because you're still legally married, you may face restrictions about which beneficiary designations you can change. Depending on the type of document or account you're considering, you may not be able to remove your spouse entirely or at all until your divorce is finalized.
Guardianship of Children
Should you die before your divorce becomes final, guardianship of your children will go to their other parent in most situations. So even if you designate someone apart from your ex to be your children's guardian, their parental rights will generally prevail.
Prenuptial Agreement and/or Postnuptial Agreement
Many couples will have a prenuptial agreement or postnuptial agreement in place when they divorce. If they were created correctly, they could hold a lot of weight. Your divorce lawyer will refer to them as they draft your divorce agreement.
Therefore, when revising any estate planning documents, you should consult the terms of your prenup or postnup documents if you have them. What's contained in them should match what's in your new estate plan to avoid any contest later.
After Your Divorce Is Finalized
Once your divorce is finalized, you should again revisit your estate plan and do a legal checkup. At that time, you can make any additional changes you were prohibited from making before and make sense now that you're divorced.
You should also plan on reviewing your estate plan periodically or whenever a life passage occurs. Those can include another marriage, divorce, birth, death, or you simply change your mind about how you would like to structure your estate plan moving forward.
Consult a Lawyer
If you're thinking about divorce or are in the process and would like to discuss revising your existing estate plan or putting one in place, our Seattle area lawyers can help. Our estate planning attorneys have extensive experience and can develop an estate plan that works well for you and your family. We're here to help. Call our office today.
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