In this episode of Absolute Trust Talk, host Kirsten Howe and associate attorney Jessica Colbert discuss critical estate planning considerations during divorce proceedings. They explore what happens if someone becomes incapacitated or dies while their divorce is still pending, revealing potentially unwelcome consequences if proper planning isn’t in place. The discussion highlights how existing estate plans typically name a spouse as the primary decision-maker and beneficiary—a designation most divorcing individuals would want to change immediately. Without written estate plans, the situation becomes even more complicated, potentially requiring expensive and contentious conservatorship proceedings for incapacity or following intestacy laws upon death that would likely favor the soon-to-be ex-spouse. This episode, part one of a two-part series, emphasizes that you remain legally married until a judge finalizes your divorce, meaning all existing estate planning designations remain in effect unless proactively changed.
Time-stamped Show Notes:
0:00 Introduction
2:10 What happens if you become incapacitated during divorce with a written estate plan
2:52 The consequences of becoming incapacitated without a written estate plan during divorce
3:28 Brief explanation of the conservatorship process and why it should be avoided
5:03 What happens if you die before your divorce is finalized
5:12 Death without a written estate plan during divorce: intestacy and its complications
6:29 How existing written estate plans remain in effect until the divorce is finalized
6:48 The bottom line: You remain legally married until a judge says otherwise
Transcript:
Hello and welcome to Absolute Trust Talk. This is our podcast here at Absolute Trust Counsel. I’m Kirsten Howe, and one of our associate attorneys, Jessica Colbert, is joining me today. Today we are recording on the 100th day of President Trump’s second term in office, and I’m pretty sure, at least based on what I’ve seen and heard this morning, we are the only people in any medium who are not talking about the first 100 days of his presidency. Although I just mentioned it, we’re not going to talk about it. We’re just going to cover our topic, estate planning during divorce.
But before we get into it, I want to mention to our audience that this may be the last time you will see Jessica for a little while. May not be. I’m not sure how the next couple of weeks are going to go, but Jessica is going out on maternity leave soon. Jessica, we are going to miss you.
I will miss you too, but don’t try, try, try not to miss me too much.
We won’t call you at home.
We’re not going to invade your maternity leave. Okay? So, you may see her next week. You may not. It just kind of depends on all kinds of things. But just wanted to let our audience know.
Okay, as I said, we will discuss estate planning during divorce. What happens in this first episode—I think this is going to be a two-episode series. I think we’re just going to be talking about what happens if you die or become incapacitated while your divorce is pending. Jessica, if a—let’s start with incapacity, which is our favorite topic. If a client becomes incapacitated during their divorce, before the divorce is final, what happens?
If they have a written estate plan, that will still control. So the person that they’ve named in their estate planning documents, in those various roles—you have your healthcare agent making healthcare decisions for you under your healthcare directive, you have your agent under your durable power of attorney making legal and financial decisions for you, and the person that you’ve named as trustee to step in and manage your trust assets if you become incapacitated—that person will still take on that responsibility. And almost always, that person that you’ve named for all those roles is your spouse. And if you are in the middle of a divorce, that likely is no longer the person that you want making all those decisions for you.
Right. So that’s what happens if you become incapacitated and you have a written estate plan, you’ve already taken care of all the things that we want people to do. What if you don’t have a written estate plan?
Yeah, so if you don’t have a written estate plan, there isn’t someone who just automatically gets it. I think people often assume, ‘Oh, my spouse automatically has that authority,’ and that’s not the case. Someone must pursue a conservatorship to get appointed to make those legal, financial, or health care decisions on your behalf.
And just—this is not an episode about conservatorship, but just to kind of flush that out a little bit, a conservatorship is a court process where somebody is going to court, they’re filing documents saying this person that I know is incapacitated and they need somebody to legally step in and take care of all the aspects of their life, make all their decisions for them, including healthcare decisions. And a judge then says, ‘Yep, you’re right. They need that, and you are the one.’ So that person then has the legal right to go and do all these things. Conservatorship is a long, arduous, and therefore very expensive process, and it can be contentious if somebody, for example, a soon-to-be divorced spouse, steps up and says, ‘I want to be the conservator.’ Other family members might choose to fight that, and then you really get into a big to-do and a big expense. So one of the things we’re always trying to do in estate planning is avoid conservatorship, and that is not ideal. So always, always, always better to have a written estate plan.
All right, we’ve just been talking about what happens if you become incapacitated while your divorce is pending. But as estate planners, we are also focused on death.
Our two favorite topics.
What happens, Jessica, if a client dies before their divorce is final?
If they do not have a written estate plan, then there are, you know, the usual intestacy options, and those are options that occur according to law. We’ve talked about them in past episodes, but just briefly, you know, jointly held assets, such as a jointly held bank account, automatically belong to the other co-owner. Community property assets would then belong to your surviving spouse. Separate property assets would belong partly to your spouse and partly to your children or other family members. And then, without a written estate plan, there may need to be some court involvement, either a spousal property petition or a probate or sometimes both.
Right. Okay, so it’s intestacy. Intestacy is always bad and complicated, and in the case of a pending divorce, you still have the intestacy problems, but you also have the fact that your spouse, who you’re trying to get divorced from, is probably going to inherit a lot of stuff.
What about if there is a written estate plan?
If there is a written estate plan, that is still valid and will still be followed. And you know, again, typically, the plan leaves everything to your spouse. And again, if you’re going through a divorce, that is most likely not what you want to happen.
The bottom line here—you are married until a judge says you’re not married. And that applies in the world of estate planning, or lack thereof, and so whatever you’ve got when you file for a divorce is what is going to happen, unless something else happens. So, just want to say that’s not great, but all is not lost. We do work with a lot of divorcing clients, and we help them solve that problem of ‘I have this spouse that I don’t want to leave everything to, and I don’t want them making health care decisions for me,’ and that’s exactly what we’re going to talk about on our next episode when we pick this topic up again. Thanks for joining us this time, Jessica. Thank you all, as always, for your help and your input, and we look forward to connecting with you next time.
Resources Related to This Episode:
- Absolute Trust Talk Ep. 134: Character Matters Part 1: Understanding Community Property in Divorce and Estate Planning https://absolutetrustcounsel.com/134-character-matters-part-1-understanding-community-property-in-divorce-and-estate-planning/
- Absolute Trust Talk Ep. 107: What are Commonly Overlooked Money Issues When Splitting Assets in a Divorce? https://absolutetrustcounsel.com/107-what-are-commonly-overlooked-money-issues-when-splitting-assets-in-a-divorce/
- A Will is Not Enough – Securing Your Legacy with Estate Planning Life can change in an instant. A will is not enough to be prepared. Get free access to our actionable E-book Guidebook #1 and start protecting your legacy today. https://absolutetrustcounsel.com/guidebooks/
- Learn how to comfortably define gray areas and assess your unique needs to build a secure future now effortlessly. Check out Guidebook #2, Estate Planning Beyond the Basics, here > https://absolutetrustcounsel.com/guidebooks/
- Get our free introductory guide to the most used estate planning tool, family trusts, and understand how we plan to help protect your family. Guidebook #3: https://absolutetrustcounsel.com/guidebooks/
- Absolute Trust Counsel would love to offer access to our Incapacity Planning resource page: https://AbsoluteTrustCounsel.com/Incapacity-Planning/. We’ve collected our top planning information all in one place so listeners can find videos, guidebooks, blog posts, and a host of information with tips and strategies on implementing, planning, and protecting themselves and their loved ones.
- We’re pleased to provide a library of e-books to address common estate planning questions and concerns in practical, easy-to-understand language. https://AbsoluteTrustCounsel.com/Resources/.
- ASK KIRSTEN: If you’d like Kirsten to answer your question on the air, please email her at Info@AbsoluteTrustCounsel.com.
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