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July 10, 2018

Taking Divorce Into Consideration When Making a Will

Posted in Uncategorized

Taking Divorce Into Consideration When Making a Will

If you’ve recently separated from your spouse and are planning on going through a divorce, you probably already know that you’ll want to contact a Sacramento lawyer for wills for help. A good divorce lawyer will be able to help you navigate the court system, file the appropriate paperwork, and iron out any issues that may arise if you have children with your former partner. What you might not realize is that you may want to contact an estate planning lawyer during or after your divorce as well. This is because you’ll want to revisit your will — assuming that you created one when you were with your partner — and revise sections where you named your former spouse.

Property Divisions in Wills

Many states have laws in place stating that spouses automatically inherit a certain portion of an estate even if they’ve been left out of the will. This is to make sure that someone doesn’t completely disinherit their spouse. Upon getting a divorce, this is no longer the case. If you’ve written a will with the assumption that your spouse would get at least half of your estate, you’ll have the ability to change this after a divorce.

You’ll also need to consider that your total estate value will have likely changed. This is especially important to think about if you jointly owned a significant amount of assets with your spouse, such as a house or a bank account, and if you live in a community property state. In states where divorce property divisions are made based on community property rules, you own half of what you and your former partner earned as income during your marriage — regardless of who actually earned the income. Assets that you acquired before the marriage, however, might be considered separate property.

You may need to revisit your will and make sure that you’re not accidentally leaving an asset that you no longer own to one of your beneficiaries.

Doing Nothing After a Divorce

Sometimes life gets in the way and people don’t get around to revising their wills after going through a divorce. Unfortunately, this can make it very difficult for the court system to disburse your assets according to your final wishes.

Each state has intestate laws that govern what happens to a person’s property when that person dies without a will. In simple terms, the person’s estate must go through probate court and a judge appoints a third-party administrator to disburse assets to the person’s legal heirs according to the state’s intestate laws. When you die without having created an updated will that reflects your current circumstances, something similar might occur. Your beneficiaries would have the ability to contest the terms of your will on the basis that it’s not accurate, and a probate court judge would have the final say in which beneficiary receives which assets. The probate process can cost a lot of time and money — but more importantly, there’s also no guarantee that your final wishes will be carried out as you planned.

Contact a Lawyer

Getting a divorce can be very complicated but it certainly helps to have lawyers who may guide you through the process. If you have any questions about how your finances could be affected by your divorce, don’t hesitate to call our firm.

Thank you to our friend and contributors at Yee Law Group, PC for their insight into wills and divorce.

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