Separated or Divorcing? Resolve to Update Your Will
When facing the emotional and financial stress and turmoil of a separation or divorce, our clients often do not think of updating their wills, estate plans, life insurance policies, IRAs or power of attorney designations. This step is crucial to ensure that your wishes are carried out with respect to your assets, property and the rights of your children if you were to die.
A will or estate plan is important for every adult. However, after a separation or divorce, the lack of an updated will or plan may result in decisions about your finances or property that you would vehemently oppose. Updating your will or estate plan ensures that your intent concerning your home, money and other assets you have at the time of your death is clear and designates who will handle your estate. Most importantly, your new will revokes any prior wills or codicils.
There is a common misconception that estate plans and wills cannot be updated or prepared until a divorce is finalized. This is not true. Estate plans and wills can be changed or amended any time as long as the person is over 18 years old and has appropriate mental capacity.
Pennsylvania law protects married couples and their rights to inherit their spouse’s estate. This means that if spouses are separated and in the process of divorcing, until adequate grounds have been established or the divorce is granted and written decree issued, spouses are still considered married and the surviving almost-divorced spouse would inherit assets listed in both spouses’ names. Assets titled in individual names would be distributed per your will, unless your spouse elects against the will. In this case, your spouse could receive up to 1/3 of your estate.
Assets with beneficiary designations, such as private life insurance and IRAs do not pass through the will, but go directly to the designated beneficiary. A divorce automatically nullifies the rights of an ex-spouse to inherit from a will or a private life insurance policy according to Pennsylvania estate law. For an ex-spouse to continue as the beneficiary, either the settlement agreement or a court order must specifically outline that the provision is intended to survive the divorce.
However, employment-related life insurance policies, pensions, retirement savings or other employment-related plans that provide death benefits will be paid according to the last beneficiary you provide to your employer before death. It is critical to review your employment benefits and make any changes if you are separated, divorcing or divorced.
In regard to children, your will sets forth your intent as to who will care for your children’s legal and financial matters after your death. In the event of your death, by law, your child’s other parent receives custody, unless that parent’s rights have been terminated or the parent is deemed unfit. If you have concerns about your ex-spouse or child’s other parent raising your child, Lepley, Engelman, Yaw & Wilk, LLC’s family attorneys can advise you on the best steps to take. It is prudent to designate a guardian and alternate guardian for your children as part of your will. If children are without proper parental control, an agency can take custody. A grandparent or relatives may have standing to challenge custody.
A financial guardian may be different than a legal guardian. If you do not name a financial guardian for your child in your will, your ex-spouse or child’s other parent will have control of the assets left to your child.
Updating or creating a new will, trust, power of attorney and reviewing your life insurance and employer-related benefits when you separate and divorce is critical to ensuring your wishes are carried out and your assets are given to who you choose. Call the Family Law attorneys at Lepley, Engelman, Yaw & Wilk, LLC to update your legal matters today.
Lepley, Engelman, Yaw & Wilk, LLC’s attorneys have extensive experience in estate planning, estate administration, trust preparation, trust litigation and real estate litigation. Our attorneys plan estates for clients that are personalized and best meet their needs. We work with our clients to prepare wills, Advanced Health Care Directives (Living will), Power of Attorney and other necessary plans.
Lepley, Engelman, Yaw & Wilk, LLC seeks to maneuver our clients through the probate process as quickly as possible while also limiting inheritance tax liability so beneficiaries receive as much of the estate funds as possible.