An estate plan can be as simple or as complicated as the assets involved and the people involved, and most divorces create additional complications. Depending on the circumstances, there may even be differing phases the estate planning documents need to go through.
For example, if someone created estate plan documents with their spouse then entered a separation, they may particularly want to change their power of attorney and medical directive to protect against use by an angry spouse. A revised will can also be a good idea. Virginia is traditionally unwilling to presume that a separation will end in divorce rather than reconciliation, so while there are certain provisions of a will that are automatically terminated by entry of a divorce decree (such as the spouse serving as Executor), during the separation period those are still operational and could even be dangerous (for instance, the Executor becomes the custodian of the decedent's attorney-client privilege and would have a right to access the divorce attorney’s files).
Upon divorce, the former spouse is removed by law from many aspects of estate planning documents even if they aren't changed, but new documents are helpful in documenting the changes, protecting against misuse of the old documents, updating to new trusted people, and filling contingencies that didn't have to be considered before. In addition, there are times when re-including the former spouse makes sense, such as making the former spouse a successor owner of a shared child's 529 account; some changes may even be required to comply with a property settlement agreement or divorce decree, such as when a life insurance trust is mandated or a party negotiates for estate planning provisions in lieu of requiring liquidation of an income-producing asset.
Remarriage creates a raft of new issues usually advisable to address in a premarital agreement. Especially with a remarriage later in life, a trust may end up being necessary to allow a continuing balance after death between providing for a new spouse and for children from the prior marriage and trying to manage the inherent grounds for conflict between them.
Your estate planning attorney will probably need to see your divorce decree and property settlement agreement to ensure your new plan doesn't run afoul of your continuing legal obligations. If your attorney assisted with a joint estate plan before your separation, he or she may not be able to assist either party with planning during the separation or post-divorce, as confidential information shared in the joint plan creates a potential conflict of interest for the attorney.
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Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.
The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.