Many clients do not realize that a divorce can have significant effects on estate planning. Whether you already have an estate plan in place or you need to start working on one, your estate planning attorneys can explain how a divorce will change your goals. While divorce is certainly stressful and difficult for most, it is still important to address any potential estate planning issues that may arise. Here is what you need to know to protect yourself and your estate if your marriage is ending.
How divorce affects inheritance
One of the primary reasons divorce affects estate planning is the fact that spouses have an automatic right to inherit from the other spouse upon their death. What that means, essentially, is that even if you do not include your spouse in your estate plan, your spouse still has a legal right to receive a part of your estate after your death. When there is a divorce, the spouses no longer have that automatic right to inheritance.
Regardless of this rule, most people do in fact include their spouses in their estate plans. If those provisions remain unchanged after a divorce, then the former spouse will still be entitled to inherit. For this reasons, if you created an estate plan while you were married, estate planning attorneys can make sure that your estate plan is modified so former spouses are no longer included, if that is your wish. The mere fact that you are now divorce will NOT override the provisions of a valid estate plan.
The need to modify incapacity plans following a divorce
Just as spouses include each other in their estate planning to ensure inheritances are handled the way they want, spouses also typically put a plan in place that allows them to care for each other if one of them becomes incapacitated or unable to make their own decisions. So, when a couple gets divorced, their incapacity plans need to be updated to reflect the new situation. Discussing this situation with estate planning attorneys is the best way to go.
The purposes of estate planning
The purpose of estate planning is to prepare clients and their families for the possibility of incapacity and death. There are several different estate planning tools you can use for your plan, depending on the goals you have for the future. A Sacramento estate planning attorney can help you choose the right tools for your estate plan.
Planning for possible incapacity
Incapacity can be the result of a medical condition or an injury. The legal concept of incapacity refers to the ability to understand the potential consequences of a legal proceeding. However, when you are dealing with estate planning issues, incapacity refers to a person’s ability to manage their own affairs and make their own decisions.
In addition to mental incapacity, your inabilities can also be physical in nature. Whatever makes it difficult or impossible for you to take care of your own affairs. Without an estate plan that addresses incapacity, the court may end up appointing a court-supervised conservator to take care of you.
Advance Medical Directives can be used for incapacity planning
An Advance Medical Directive is simply a legal document that allows you to delegate medical care and treatment-related decisions to someone else in the event you cannot make them yourself. Advance medical directives permit you to choose someone to manage your medical decisions. Advance Medical Directives are created so that they take effect even in cases of temporary incapacity.
Using a Financial Power of Attorney as part of your incapacity plan
Along with medical decisions, incapacity may also require the need for assistance in handling financial matters. For this type of assistance, you will likely need a Financial Power of Attorney which allows you to select someone you trust to manage your affairs. Ask your Sacramento estate planning attorney about your options.
Planning for your death
The second purpose of estate planning is to decide how you want your estate to be handled after your death. One of the primary estate planning tools that accomplishes this is the Last Will and Testament. A Will is a set of written instructions regarding how you want your estate to be distributed upon your death. A Will can also nominate a guardian for your children in the event you pass away while they are still minors. One disadvantage of a will is that the property must go through probate before the assets in your estate can be distributed.
Download our FREE estate planning checklist today! If you have questions regarding divorce and estate planning, contact the experienced Northern California Center for Estate Planning and Elder Law for a consultation, either online or by calling us at (916) 437-3500.