WHERE THERE’S A WILL THERE MAY NOT BE A WAY

                  As a child growing up I was often   subjected to many trite “old sayings” where my parents gallantly attempted to grace me with “word of wisdom” designed to persevere in the face of adversity.  Thus, any time I became frustrated while pursuing a project and on the cusp of quitting, I would hear, “Cindy, when there’s a will there’s a way.”  I took this to heart (most of the time) and usually got to the end goal.

                  Clearly, however, when my parents said this, they never contemplated a “will” in the legal sense.  You see the will of a person who has gone through a divorce, may not truly establish the way this individual intended to distribute his or her assets upon death.

                  “How can that be?” you may ask. 

                  Glad you did ask. Quite simply, frequently in a divorce judgment or settlement agreement there are certain rights and privileges of surviving spouses, former spouses and heirs that, absent addressing in an estate plan, may not be what you think.  Similarly, sometimes even when a former spouse receives an asset in the divorce, the failure to change the beneficiary of that asset after the divorce may result in the other former spouse reaping benefits clearly not intended by the former spouse who passes first.  Most commonly this occurs where beneficiaries are not changed in life insurance policies, 401Ks, IRAs and other similar retirement accounts, and bank accounts.

                  “Okay, Cindy, so how do I avoid that happening to me?”

                  Yet another  excellent question.  First, if you hired an experienced family law/divorce attorney that attorney would have either included language in the marital settlement agreement (assuming you did not go to trial) that circumvented this problem, or, even better yet, reminded you in writing after the final judgment was entered, to review all of these similar accounts and make the changes to your beneficiary designations.  (Yes, all of my client’s get this).  Still, you have to actually act upon this after the divorce!  I pride myself on excellent client follow up, but even I don’t   check back a few months later after a divorce to make sure the client followed my instructions.

                  The second step is to make sure after you are divorced that you have all of your estate planning documents (and that includes the will, a durable power of attorney, health care surrogate and trusts) updated by an experienced estate planning and probate attorney.   Imagine becoming incapacitated having not updating who you appoint as your health care surrogate and then having your ex dictating your medical care!   You know another one of those expressions from my youth (though not necessarily worded quite this way from my parents)… Pay back is a… well, you know.

                  Now if you have gotten this far and actually do have a consultation with an estate planning attorney, make sure  you bring your final judgment of divorce and marital settlement agreement with you as well as copies of any previous estate planning documents.

                  The point of this blog is to remind you that there are a heck of a lot of things that people going through a divorce typically do not think about, and why would they?  That is why hiring attorneys who focus on these issues is well worth it. After all, without a will there is not a way!