Paule, Camazine & Blumenthal, P.C. posted in Estate Planning on Thursday, October 16, 2014.
When a married person dies, most of the time that person’s property is left to the surviving spouse. When a married couple puts estate planning documents (wills and trusts) in place, they typically leave all of their property to their spouse, and they each give their spouse the power to make decisions about their property and health by naming each other as executor, trustee, etc. If the couple never executes wills, Missouri law dictates who gets the property. When there is no will, the surviving spouse receives all of the deceased spouse’s property unless there are children, in which case the survivor may get half of the property.
Usually, having a surviving spouse receive the assets is what people want. In some cases, though, particularly when a couple is in the midst of a divorce, a married person actually may not want a surviving spouse to be the beneficiary of the assets. Once a couple’s divorce is final, Missouri law provides that all provisions in estate planning documents (will, trust, power of attorney, etc.) in favor of the ex-spouse are no longer valid. Therefore, if a person fails to change estate planning documents after a divorce to remove provisions for the former spouse, the change will be triggered by Missouri law.
This change does not happen until the divorce is final. If one spouse has just filed for divorce, or if the divorce is dragging on and one spouse dies before the divorce is finalized, the soon-to-be ex-spouse will inherit the property from the deceased spouse, which is likely not what the deceased spouse would have wanted.
To avoid this problem, as soon as one spouse files for divorce, both spouses should at least think about what they want to happen to their property in the unlikely event of their death while the divorce action is proceeding. Also, they should consider whom they want to serve in the various capacities (executor, trustee, attorney in fact, etc.) under any existing estate planning documents, in lieu of the surviving spouse. A simple revision to estate planning documents could go a long way towards ensuring some peace of mind during this very difficult process.
If you find yourself in this position, you should consult an attorney. The attorneys at Paule, Camazine & Blumenthal, P.C. have experience in helping clients express their desires through their estate planning documents.