Divorcing During COVID-19? It is more important than ever to get an estate plan in place.

Posted on April 22, 2020 by Lisa Sharpe

If you are going through a separation and/or divorce, it is important to review your estate plan as early as possible.  In Washington State, you can start your estate planning when you know that you intend to file for divorce.  You can also draft a new Will while a divorce is pending.  Even with an agreed divorce, you must wait the minimum cooling-off” period of 90 days before a divorce process begins.  Most cases will take longer due to the “Stay Home Stay Healthy” order and because courts are limited to “Mission Critical” matters. If you have filed for divorce, the process is likely on pause right now.  Updating your estate plan immediately will prevent your spouse from inheriting or gaining control over your share of the assets if you die or become incapacitated before the divorce is final.

Washington State does not restrict you from changing your estate plan during a divorce.  It is important to keep in mind, however, that the terms of any prenuptial, postnuptial, and separation agreements or Orders that were signed or entered should be consistent with your estate plan.  Your retirement account beneficiaries should not be changed while the divorce is pending.

Virtual Notary

An electronic notarization can be used for many, but not all, of the common estate planning documents.  A new Washington law allows for a virtual notary, which can be arranged for you to sign certain estate planning documents. Those documents that can be signed without witnesses present include powers of attorney, health care directives, and community property agreements.

Some estate planning documents, however, are not legally valid unless signed in the physical presence of one or more witnesses. The Last Will and Testament, for example, must be signed in the presence of two witnesses to be legally valid. Despite this requirement, however, it is still possible to have a ‘contactless’ document signing in which the individual signing the Last Will and Testament does not come into physical contact with the witnesses. A common method for a COVID-19 contactless signing procedure is one in which the individual signing the Last Will and Testament does so inside his/her home while the witnesses watch the signing take place from outside the home through a window.

Health Care Directive or Living Will

A Health Care Directive (often referred to as a ‘Living Will’) lets you state what kind of medical treatments you do or do not wish to have if you are terminally ill or permanently unconscious.  During these uncertain times, it makes sense to sign a Health Care Directive and make your wishes known.

Will

Washington law states that after the granting of a divorce, all provisions in your Will in favor of your former spouse are automatically revoked. However, the exclusion does not take effect until the divorce is finalized. Similarly, Washington intestate succession laws, which apply to those who do not have a Last Will and Testament, do not remove a spouse as an heir until after the divorce is finalized. A legal separation has no effect on the provisions of a Will or the applicable intestate succession laws.  If you are legally separated and have not executed a separation agreement, you should have a Will or trust in place. Also, if you execute a new Will, your spouse can file a claim for his or her share of the assets, plus a homestead benefit and a family allowance upon your death. However, the rights can be waived in a separation agreement.

Trusts

If you have a revocable or living trust, provisions for your former spouse will be nullified by divorce.  However, irrevocable trusts are more complex.  If you have an irrevocable trust that names your former spouse as a beneficiary, the provision in favor of the former spouse may remain effective notwithstanding separation or divorce.

Powers of Attorney

In Washington State, a power of attorney given to your current spouse is automatically revoked upon the filing of a petition for dissolution, divorce or legal separation. This prevents one spouse from gaining unauthorized access to the other spouse’s assets during a divorce via a power of attorney that was executed in happier times.

Beneficiary Designations

In almost all cases assets that let you designate a beneficiary (such as life insurance policies, retirement plans, and annuities) are not controlled by your Will or trust.  In Seattle, the court will issue an automatic restraining order to prevent any beneficiary changes while the divorce case is pending.  A divorce decree will automatically revoke an ex-spouse as the beneficiary of a life insurance beneficiary. However, neither a separation nor a divorce decree will automatically revoke a 401(k) or IRA beneficiary designation in favor of an ex-spouse. The same is true for any retirement account governed by the federal retirement law known as ‘ERISA.’ Therefore, if you designated your spouse as a beneficiary on a retirement account while you were married and you do not want her/him to benefit after divorce, then you should to consult with your divorce lawyer or estate planning lawyer on how to change your beneficiary designation as soon as possible after the divorce is entered.

Conclusion

If you are in the process of getting separated and/or going through a divorce, Lasher Holzapfel Sperry & Ebberson PLLC can help you protect your estate by ensuring that all your estate planning documents are properly updated.