Divorce and Estate Planning

If you’re going through a divorce, estate planning may be the last thing on your mind. But ask yourself this: if something were to happen to you, whom do you want receiving your assets and property? If you somehow became incapacitated, whom do you want making medical decisions on your behalf? Hopefully you’re fine with your current spouse making these decisions, because unless you change your estate plan or establish living will, the law still views you as “married” until the papers are signed (and sometimes after).

The celebrity gossip world has been ablaze lately with news of former NBA star Lamar Odom’s recent hospitalization after an apparent overdose at a Nevada brothel. His ex-wife Khloe Kardashian has been holding a loyal vigil by his hospital bed, along with the rest of her family. What’s interesting about this story is that even though Khloe and Lamar signed divorce papers in June, a backlog in California’s court system delayed the processing of the papers, leaving them still legally married. Since Lamar didn’t have a living will, his still-legal wife Khloe retained power of attorney to make medical decisions on his behalf.

This story — strange as it may be — should serve as a teachable moment to anyone entering a divorce, or other major life change. As you begin the process, you should consult an expert to address both your estate plan, as well as your non-will or trust documents; things like healthcare proxies, living wills and powers of attorney. Lamar’s situation is a perfect example of how emergencies can arise right on the heels of a divorce, and your current estate documents may lead to an outcome that doesn’t reflect your wishes. Even if the divorce papers were still being finalized, Lamar could have drafted an updated living will or healthcare proxy naming someone other than Khloe to handle his affairs.

The common mistake in these cases is that people expect the divorce papers to do all the work for them. The divorce process itself can sometimes take months or years to finalize. Whether you’ve signed the papers or not, if you should die or become incapacitated during that time, you are still legally married to your spouse. So if you do not have a will, and all of your children are from your current marriage, it’s quite possible all of your community property will go to your spouse. And even if you do have a will, if something happens to you before the papers are finalized, it will be executed as if you and your spouse were still married.

Tertiary estate planning documents (healthcare proxies, living wills, powers of attorney, etc.) complicate matters further. Neither your medical power of attorney nor durable power of attorney — your spouse’s ability to make financial decisions for you — are not invalidated by the divorce process. These will require separate actions to change, and should be addressed as soon as possible. If you have minor children, your may want to appoint a trustee of your choosing to help manage their portion of the estate until they come of age. Otherwise, this role may fall upon your spouse.

If a family law attorney is handing your divorce, they should be able to make basic changes and modifications to your will and testament. More complicated estate plans, especially ones involving living trusts encompassing numerous assets, may require the attention of a specialized estate planning attorney. An interesting caveat is that the attorney that helped you and your spouse draft your current estate plan is ethically prohibited from changing it for you now that you are going through a divorce, so you may need to look elsewhere.

Signing divorce papers has a feeling of finality, but you can’t simply to rely on the signature to sever any and all ties to your spouse. Estate plans are complicated, and should be revisited immediately after a divorce, to ensure that there are no lingering connections from your former marriage.

A must visit for your estate plan is the offices of Velasco Law Group. They are located in Long Beach and Downey with staff who can speak both English and Spanish. Divorce and estate planning go hand in hand, do not overlook this part of the process the day you decide to get a divorce.