Divorce and Your Estate Planning

Posted By: Manish C. Bhatia

When an individual is considering a divorce, his or her estate planning is likely low on the list of priorities.  However, divorce is one of those significant changes in your family situation that should trigger an immediate review of your existing estate planning documents or preparation of documents if you do not already have an estate plan.1

The effect of a divorce on existing estate planning documents is determined by state law.  In Illinois, an ex-spouse is deemed to have predeceased the creator of a Will or Revocable Living Trust.2, 3  However, the Illinois laws do not affect the documents until the divorce is final.  Since a divorce can take many months to finalize and a lot can happen between the decision to divorce and when it is final, the state’s laws should not be relied upon and estate planning issues should be addressed immediately when a divorce is being considered.

There are many issues regarding divorce and its effect on estate planning documents that are not addressed by the laws but can be resolved through proper planning.  Several of these issues are discussed below.

Existing Estate Planning Documents

Since the spouse is typically named as the primary beneficiary, executor, trustee and health care and property agent, existing estate planning documents should be amended immediately when the decision to divorce has been made.  If documents are not amended and one of the spouses dies before the divorce is final, the surviving spouse would stand to inherit under the documents.

For example, assume that Henry and Wanda have an estate plan which names the spouse as the beneficiary of the estate and the agent for property and health care purposes.  Wanda files for divorce, but fails to address her estate planning before she dies in a car accident.  Despite having filed for divorce, Henry will inherit Wanda’s estate under the estate planning documents since they were still legally married at the time of Wanda’s death.

Now assume the same circumstances, but instead of passing away, Wanda survives but is in a coma.  Under her Property and Health Care Powers of Attorney, Henry would have access to Wanda’s accounts and would also have the authority to make health care decisions for Wanda during her incapacity.  In most cases of divorce, one spouse would not want the other to continue to have such authority.

No Estate Planning

A spouse who does not have existing estate planning documents should have similar concerns regarding unintended results, except that the surviving spouse will inherit the estate under the state’s laws rather than under the terms of the outdated documents.4  Additionally, a health care provider will look to the spouse first to make health care decisions in the absence of a Health Care Power of Attorney, regardless of whether a divorce has been filed for.

Elective Share

Without proper advice, even having an estate plan can backfire if a spouse dies before the divorce is final.  In most states, a surviving spouse may renounce the Will of the deceased spouse and instead take an “elective share.”  The elective share is a fraction, percentage or amount of the deceased spouse’s estate, as legislated by state law, to which the surviving spouse is entitled in order to prevent an individual from completely disinheriting the surviving spouse.  In Illinois, the fraction to which the surviving spouse is entitled is one-half of the probate estate if the decedent left no surviving descendants and one-third of the probate estate if the decedent did leave surviving descendants.

In other words, assume that upon making the decision to divorce, Wanda revised her Will to leave everything to her brother, Billy.  If Wanda dies before the divorce is final, Henry could take the elective share and still receive a significant portion of Wanda’s estate, despite her best efforts to disinherit Henry.

Since trust assets are not included in an individual’s probate estate, proper planning can ensure that the deceased spouse’s assets pass in accordance with his or her wishes.

Life Insurance and Accounts

A review of beneficiary designations should be a part of every estate plan, but it is especially important in situations where divorce is being considered.  Unlike designations in Wills, Revocable Living Trusts and Powers of Attorney, the designation of a spouse as beneficiary of a life insurance policy or an account is not automatically revoked upon divorce.  Therefore, in addition to the concern of death before the divorce is final, beneficiary designations on all policies and accounts must be reviewed when the decision to divorce has been made.  Upon preparing an estate plan, your estate planning attorney should provide you with the specific language necessary to correctly designate your primary and secondary beneficiaries for your assets.

Gifts and Inheritances

Assets acquired during marriage are considered marital assets in Illinois, which are subject to equitable division upon divorce.  However, there are exceptions to this rule.  Gifts and inheritances to one spouse are considered non-marital assets unless they are commingled with marital assets.5  Examples of commingling include adding the assets to a joint account or using the assets to purchase jointly owned property, such as a home.  Proper advice must be obtained before any deposits or purchases are made.  Once assets are deposited into a joint account or used to purchase a jointly owned asset, it is too late.

Estate planning affects, and is affected by, many circumstances beyond taxes and the transfer of property.  One of the primary goals of estate planning is to ensure that your estate is administered in accordance with your wishes rather than the laws of the state.  When divorce is involved, this goal becomes even more important.  For comprehensive advice that takes all of your family and financial situations into consideration, it is important to work with an experienced estate planning attorney.

  1. For a detailed discussion of when your estate planning documents should be reviewed, please see “Reviewing Your Existing Estate Planning Documents” in the October 2010 newsletter.
  2. 755 ILCS 5/4-7(b) – Dissolution of marriage or declaration of invalidity of the marriage of the testator revokes every legacy or interest or power of appointment given to or nomination to fiduciary office of the testator’s former spouse in a will executed before the entry of the judgment of dissolution of marriage or declaration of invalidity of marriage and the will takes effect in the same manner as if the former spouse had died before the testator.
  3. 760 ILCS 35/1(a) – Judicial termination of the marriage of the settlor of a trust revokes every provision which is revocable by the settlor pertaining to the settlor’s former spouse in a trust instrument or amendment thereto executed by the settlor before the entry of the judgment of judicial termination of the settlor’s marriage, and any such trust shall be administered and construed as if the settlor’s former spouse had died upon entry of the judgment of judicial termination of the settlor’s marriage.
  4. For a detailed discussion of Illinois’ intestacy laws, please see “Definition of the Month: Intestate” in the August 2010 newsletter.
  5. For a detailed discussion of how to protect an inheritance or gift from divorce, please see “Protecting Inheritances from Divorce” in the November 2010 newsletter.