Changing Your Estate Plan After the Divorce — Wills, Trusts, and Powers of Attorney

We should all periodically re-examine our estate plans to ensure that they are consistent with our current intentions. The most basic component of such a plan is an individual's Last Will and Testament. Reviewing your estate plan every three to five years is a good practice, but you should also review your plan whenever your life circumstances have significantly changed. Examples of significant changes would include the birth of your first child, and the finalization of your divorce. Almost certainly, the instruments that make up your estate plan will need overhauling after the divorce. (You might want to read our related posts on Insurance Matters Following Divorce for a discussion about changes to your automobile, homeowners, life and disability policy coverage.) A thorough review of your plan while the divorce is still pending is very important because your legal status and financial circumstances are about to undergo a major transformation. You will soon begin a new chapter in your life, one that is independent of your spouse and one that creates new responsibilities for both of you. Take a moment and read through your estate plan documents and isolate those that need modification or revocation. If you don't yet have an estate plan, this is an excellent opportunity to begin conceptualizing one. You may prepare to make changes to your estate plan during the divorce, but refrain from taking any action that might violate the preliminary injunction. Two Quick Observations… Death Without a Will. If you have no Will and you do not live through the finalization of your divorce, then your assets may go to your "surviving spouse" under Arizona's laws of intestate succession. The same would be true if your spouse died without a Will before the divorce is final. The death of a spouse before the divorce is final will terminate the divorce proceedings — the death ends the marriage. Inheritance During Divorce. If you inherit property or money before your divorce is finalized, then the assets that you receive could be taken into consideration when calculating spousal maintenance. One or the Other — Testate or Intestate. When a person dies with a Will, then he or she is said to have died testate. The enforceable terms of the Will control the administration of the decedent's testate estate and the distribution to the devisees named in the Will. By contrast, when a person dies without a Will, he or she is said to have died intestate. Arizona's laws of intestate succession apply to the administration of the decedent's intestate estate and control the distribution of assets to the heirs at law. Arizona's laws determine exactly who the heirs at law are or will be. If you had a Will drafted after your marriage, then your spouse was probably the person named as your first choice to act as personal representative of your estate following your death. He or she was probably also the named primary devisee, or beneficiary. Should that be the case, then you may wish to change your Will after the divorce is final. At the Law Offices of Scott David Stewart, our family law attorneys are familiar with client concerns about changing important provisions of their estate plans and how confusing the laws of inheritance often are. To discuss these important financial matters as a part of your divorce or child custody matter, contact our offices today to schedule a confidential consultation with an experienced member of our family law team. Resource: Ariz.Rev.Stat. § 14-3101: Devolution of Estate at Death; Administration on Deaths of Husband and Wife http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/14/03101.htm&Title=14&DocType=ARS

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