Monday, August 3, 2009

Dying After Filing Divorce But Before Final Hearing

The Post-Tribune's Next steps in probate estates picks up a few scenarios where estate planning and family law intersect:

Your "probate estate" is all property that you own along with interests in property that do not pass to others by what is known as "operation of law." Examples of property that will not be included in your probate estate are 1) bank accounts you may own with a relative that are jointly held with a right of survivorship; 2) a house you may own with your spouse that is titled jointly with right of survivorship -- meaning that if you die, your spouse will receive the total ownership at the instant of your death -- and vice versa. In this event, the house would not be part of your probate estate. However, if you are divorced, this contingency is unlikely. If you don't have a will, then your assets will be distributed according to state law
Yes, you forget to change the former spouse as the beneficiary on bank accounts, 401(k)accounts, vehicles, insurance policies, or land, and that property goes to the former spouse. And nothing can be done about it by the other heirs.

Which is why family law attorneys want you to double check your estate planning documents after the divorce. Since we are worrying here over the subject of death before a divorce, make sure you discuss these property issues at your first meeting with a lawyer.

The article goes onto to discuss Wills and intestacy statutes and what will happen if you or your spouse die before the judge signs the Decree of Dissolution:
If you separated, but not divorced, you can't cut your spouse out of your will -- unless there is a written waiver or release in your separation agreement or prenuptial agreement. In most states, a surviving spouse -- even if estranged -- is granted the right to elect against the will and take a statutory share if the will leaves him or her nothing. Generally, this share is one-third. Some states also have an allowance for the surviving children. If you try to cut your spouse out of your estate through your will, he or she can renounce the will and, instead, make an election to take the share of your estate provided for by state law. Remember: The share and definition of what is included in your estate varies from state to state.

If you die without a will, are still married but separated and have children, most state laws require that a third to a half of the estate will go to the surviving spouse and the rest to the children, no matter their ages. If the children are minors, in all probability, the probate court will require their share be maintained in a guardianship account with reports and accountings made to the probate court until the child reaches 18 (21 in some states).
Of course, a prenuptial agreement would smooth out these problems. But are you going to get one?

And, yes, we did have a case few years ago that went up to the Indiana Court of Appeals -one spouse dies before Final Hearing and what was to be former spouse became an heir instead and inherited what was to be lost in the divorce.

No comments: