Posted on February 11, 2020 by Carol Hill
While many people consider updating their estate planning documents following a divorce, it is best to update these documents when planning for a divorce or separation process, or risk potentially disastrous results.
Washington law automatically overrides some, but not all, existing estate planning documents upon the filing of a marriage dissolution or legal separation action. Powers of Attorney, for example, are superseded by Washington law so that, as soon as such an action is filed, a spouse is removed automatically as a decision maker for the other spouse. (RCW 11.125.199(1)(c)).
For an existing Last Will and Testament, however, Washington law does not eliminate a spouse’s role as a beneficiary under the Will until after a marriage has been officially terminated. (RCW 11.12.051(1)). Similarly, Washington intestacy law, which applies to those who do not have an existing Will, does not remove a spouse as an heir to the other spouse’s estate until after the divorce.
Let’s assume that Spouse A and Spouse B are married, and that they each have Wills that direct everything to the surviving spouse at the first spouse’s death. If Spouse A begins a divorce or separation process, and then passes away before the divorce proceeding is finalized, then Spouse A’s probate assets will pass to Spouse B at her death, regardless of the fact that Spouse A and Spouse B were divorcing at Spouse A’s death (ignoring certain family allowance exceptions that may apply if there are minor children). This result is typically not the desired result between divorcing spouses, who more commonly want their children or other family members to receive their assets at death.
The solution to this potential problem is simple. Spouses in a divorce proceeding should meet with an estate planning attorney to update their estate planning documents to avoid the result described above. The estate planning documents created in this situation are often called ‘bridge’ documents because they are meant to serve as a bridge until the end of the divorce, at which time more advanced planning can be done once property has been divided and liabilities allocated.
Once a petition is filed, restraining orders may prevent updating beneficiary designations for assets like life insurance, as these actions are typically prohibited by the court during the divorce process. For this reason, coordination between the family law attorney and estate planning attorney is important. Updating one’s estate plan prior to filing the divorce petition may be desirable.
In sum, while the divorce process can be a stressful and demanding time, spouses planning to file or engaged in a divorce process benefit greatly from taking the time to update their estate planning documents in order to avoid the undesirable results described above.