Estate Planning for Divorce

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Protecting a Lifetime of Achievement

Imagine the situation where you are in your second marriage. You have significant assets, and chose because of romantic inclinations not to draft that prenuptial agreement your divorce lawyer had suggested. You have been married all of nine months, during which time you fully furnished the marital home by liquidating a portion of your CD holdings. Your spouse has been spending money like it is going out of style, but you don’t want to make waves early on. Besides, you can afford some extravagances.

You then discover that your spouse has been carrying on an affair with the ex. The response upon confrontation is “I can see anyone I darn well please.” “Well, then, why did you marry me?” “For your money, of course.” (Facts exaggerated for illustrative purposes – please forgive us.)

A divorce action on adultery grounds is immediately initiated. You can agree upon nothing. You at least have a significant amount of separate assets that you came into the marriage with. The worst that can happen is your spouse receives a significant share of the marital assets.

“So, What Can I Do?” You Ask?

“Plan your estate for your new circumstances early in the divorce process,” we reply. Since you were going to set up trusts for the children at sometime, do it now. You have to write a will anyway, so do it now. Check (and change, if appropriate) your beneficiary designations on bank accounts, life insurance, IRA’s, pensions, annuities.

Please know that we understand that in most cases, our client will want to provide something to his or her spouse, even while a divorce is pending. (Rarely do fact patterns suggested in the first paragraph occur.) The issue is how much, and in what fashion. If the amount is “less than everything”, or if the fashion is “in a trust so it can be used for the children’s college,” estate planning pending a divorce can be crucial. And estate planning can effectively be done only before you die

If you die before your divorce is final, and if you haven’t established an estate plan with the divorce in mind, your spouse is deemed to have survived you.

  • Your spouse will receive whatever you gave him/her under the will he or she asked you to draft shortly after you were married.
  • If you have no will, your spouse will take whatever is provided under Virginia law for a surviving spouse (all of it–including that separate property you so carefully protected from your spouses reach– if all of your children are children of this marriage, or if you have no children; 1/3 if you have children of another relationship).
  • All of your insurance policies made payable to your philandering spouse (and which you had intended for the kids’ college tuition) now becomes available to your spouse, and without strings.