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Sacramento Estate Planning Attorney

How does divorce impact wills drafted during marriage?


No matter the age of a couple, it is not uncommon to draft a will and establish an estate plan at some point during a marriage. Major decisions are made in these legal documents, and they can be very beneficial at delivering the wishes of the spouses at incapacitation or death. However, wills are often drafted with the idea that their marriage would last until death - so what happens if the couple decides to divorce?

How does divorce impact wills drafted during marriage? Because divorce does not void or cancel out documents such as a will, divorcing couples will need to update their financial arrangements. Failure to do so would cause the will to be executed as is. That means that certain benefits and assets could unintentionally pass on to a former spouse.

The best way to address this matter is for each spouse to draft a new will. This should be done independently in order to avoid any conflicts of interests. A new will helps ensure that the wishes of the spouses are met with regards to which beneficiary will receive what asset. In addition to a will, it is also important to update other documents such as a power of attorney and a health care proxy.

When considering beneficiary designation during the drafting process, it is important to consider how the divorce decree impacts these decisions. In some cases, a divorce settlement will call for an ex-spouse to remain a beneficiary on an insurance policy or a retirement account. Therefore, it is important to make sure that the terms in the new will reflect the financial agreements in the divorce settlement.

Because divorce is often a very emotional and life-altering event, much focus is on transitioning to a single life post-divorce. However, it is important to consider how dissolution could impact the spouses and any financial arrangements made during marriage. If a couple has a will and an estate plan made during their union, then they will need to address those documents during dissolution. This can be a complex process; therefore, it is important that spouses are independently informed so they can make the appropriate decisions with their best interests in mind.

Source: Marketwatch.com, "Just divorced? Don't forget to separate your estate plans," Liz Moyer, Feb. 23, 2015

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My Sacramento law practice, Michael A. Sawamura, Attorney at Law, focuses on wills, trusts and estate planning law in addition to business law and corporate defense services. My clients include professionals, government employees, small businesses, blue-collar workers and national corporations.

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