Your Divorce... And Death - Creating a Divorce-Proof Estate Plan

You’ve heard the old saying: “Nothing is certain but death and taxes.” While it’s something that many people don’t like to think about, we’re all going to die someday - and prudent people will plan for their death by creating a thorough estate plan. But there’s one factor that can unduly complicate your estate plan, and it’s something I see families effected by even when they think they’ve got a good estate plan in place: divorce.

Having a divorce can make a huge impact on your estate plan. If you haven’t worked with an experienced, knowledgeable, thorough estate planner to include divorce contingencies in your estate plan, it could create huge headaches for your family and could result in a lot of unintended consequences, including the decimation of your estate or having someone you wouldn’t choose raising your kids.


Plan for Divorce, Even if You’re Happily Married
When we’re happily married, we don’t want to think about the possibility that it could someday end in divorce. But with 40 to 50 percent of marriages ending in divorce, there’s a very real possibility that your circumstances will change in the future. Divorce doesn’t have to be acrimonious; maybe you each get buried in your work or your individual lifestyles, and simply grow apart. But it’s a good idea to include the possibility of divorce in your estate planning, as divorce can dramatically complicate your estate.

Think about a pre-nuptial agreement. When you create a pre-nup, you’re not stating that you expect your marriage to end in divorce. But you are planning for the contingency, just in case. It’s the prudent thing to do. Including divorce contingencies in your estate planning is along the same lines - it’s the prudent thing to do.


If You’ve Been Divorced in the Past, Estate Planning Gets More Complex
If you’ve been divorced in the past, your estate planning gets a lot more complex. This is particularly true if you have kids by a first marriage, and/or if you get remarried. What do you want going to the children of your first marriage, and how do you want to take care of your current spouse and children? Are you still on good terms with your first spouse, and do you want to leave anything to them?

If you’re not extremely explicit in your estate plan, having a prior divorce can dramatically complicate your estate. If children from a prior marriage make a claim on your estate, your family could find itself in probate court for a very long time while a judge attempts to make a fair call. You could find your estate being split in ways you didn’t intend, and could find that your family isn’t provided for in the way that you intend.

This can also be a huge problem if you have children. For example, what if you have kids from a prior marriage, but you have custody, and you and your new spouse are raising your kids? If you should die, will your new spouse become the guardian for your children, or will your first spouse file for custody? Who would you want raising your kids? How could a failure to plan for this scenario impact your children’s lifestyles - to see them ripped away from the family they know and not be cared for as you intended?

And then there’s the money question. If you’re not explicit about what you intend to leave to whom, your former spouse could use your kids by the first marriage to extract huge sums of cash from your estate. If your former spouse has custody of the children, the spouse could easily manipulate the estate to get a huge share of the cash or property. There are many ways the estate planning process can go awry after a divorce, so it’s important to work with an experienced professional to create a detailed, explicit plan for dealing with your estate and caring for your family the way you intend.


Know the Statistics, and Plan Accordingly
Do you know the statistics on divorce? Experts estimate that the lifelong probability of a marriage ending in divorce is 40 to 50 percent. And this statistic may surprise you, but roughly 65 to 70 percent of the time, it’s the wife who files for divorce. Even if you think you’re happily married, your spouse may not share your opinion and you could find your happy lifestyle ending in divorce.

Even if you’re not divorced now, if you are married, or if you could get married soon, it’s prudent to take care of the contingency in your estate planning documents. And if you’re about to get divorced or have recently been divorced, it’s a good idea to review your estate plan with an experienced professional to ensure your estate plan is complete and up to date.