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What Happens To My Joint Trust If I Get Divorced?

What Happens To My Joint Trust If I Get Divorced?



What Happens To My Joint Trust If I Get A Divorce?

What Happens To My Joint Trust If I Get Divorced?

              Going through a divorce can be an extremely painful, stressful and seemingly unending process.  It affects so many different aspects of your life.  This article discusses just one of the effects, which is your estate planning, including your living trust, will and power of attorney documents.

What happens to my estate plan when I get divorced?

This is a great question and one that a qualified estate planning lawyer Dardenne Prairie can assist you with.  In Missouri, a divorce essentially treats any distributions intended for your ex-spouse as void.  In other words,  you have a will, it says that when you pass everything goes to your ex-spouse, but upon finalization of the divorce, that provision for your now ex-spouse is treated as if they have predeceased you and therefore the distribution would pass to your contingent beneficiaries, which would usually be your children.

What happens if I have assets that will avoid probate, such as a life insurance policy?

The Missouri law treating the ex-spouse as a voided beneficiary only covers assets in probate.  If you had a life insurance policy that left your soon to be ex-spouse as the primary beneficiary, you would need to change that after divorce, because if you pass away, your ex-spouse would inherit.  This happens all the time, unfortunately, and that’s why it’s important to have a game plan to review your estate plan (or establish one) after your divorce is final.

The second thing to note is that any distribution to your ex-spouse upon your passing is only void if the divorce is final.  If you expect your divorce to be extended for a period of time, it’s important to meet with an estate planning attorney to make changes anyway.  Under Missouri law, you can adjust your estate plan to cut out your soon to be ex-spouse.  You can’t completely cut them out (unless you have a prenuptial agreement or postnuptial agreement), but you can ensure that they will not inherit everything, which would be the case if you did nothing and passed before your divorce was finalized.

What happens if I have a trust and am getting divorced?

That depends on the type of joint trust you have.  An irrevocable trust attorney O’Fallon, Missouri  can explain in more detail, but the terms of this type of trust cannot be changed after the trust is created, regardless of divorce.  This type of joint trust, however, is usually created by spouses to benefit their children.

If, on the other hand, you have a revocable joint trust, both spouses can retain control over the assets.  Of course, this assumes you would want to do that.  Most of the time, spouses want to dissolve their trust and distribute assets as agreed in their marital settlement agreement.  From there, you can take the safest step and create a new estate plan with your own trust, a new will and new powers of attorney.  You’d probably want to do that anyway, since your now ex-spouse is usually listed as your principal in your healthcare power of attorney and durable power of attorney documents.

Do you really want your ex-spouse making healthcare calls for you at the end of life?  Me neither.

As you can see, the best practice, at a minimum, when you are going through a divorce is to sit down and review your estate plan with an experienced estate planning attorney.



Inheritance Nightmares: The Unchanged Life Insurance Beneficiary Form…

Inheritance Nightmares: The Unchanged Life Insurance Beneficiary Form…

Inheritance Nightmares: The Unchanged Life Insurance Beneficiary Form

                  Whether people fail to create an estate plan or sometimes even when they do, there a host of reasons why the plan or lack thereof can be a disaster.  This article will provide an example of an actual estate planning disaster.

Early in my career as an inheritance lawyer O’Fallon, Missouri, I worked at a small law firm in New Jersey.  Our office did a lot of divorce law.  A prior divorce client was able to obtain full custody of her young daughter and escape a pretty abusive marriage.

When the divorce was finalized, our office would always send a form letter explaining it was wise to change any estate planning and also things like life insurance beneficiaries.  The idea was that most people may not recognize that if they had their ex-spouse listed on a life insurance policy, the ex-spouse would still receive the proceeds of the policy if the client were to pass away.

This particular client had a very good job as an actuary and one of her benefits was a standard life insurance that she could pay extra to add term life insurance.  She made that election and at the time of her divorce the policy coverage was $1.5 million.

A year or so after her divorce, the client discovered that she had aggressive brain cancer.  She took a leave of absence from her work and within six months or so she passed away.

Her family was understandably worried about an inheritance for their granddaughter and contacted our law firm about a life insurance policy which the client had said before she got sick.  Prior to her death, she said she had changed the beneficiary to her parents, to hold the money for daughter’s needs.  When I looked into the policy there was a huge problem:  Ex-husband was still the beneficiary on the policy.  The change of beneficiary had never occurred.

As we later found out, about a year after the divorce, client had filled out paperwork to change the beneficiary to her parents.  However, her company’s policy was that the change had to be submitted through her HR Department.  Apparently the form got lost, the beneficiary was never changed and the ex-husband was still listed as the beneficiary.

A life insurance policy is a contract.  You could list your worst enemy as a beneficiary and when you pass your worst enemy will receive the proceeds, regardless of what you intended or what your estate plan says.

Eventually, our firm was hired to file suit on the basis that client’s intent was clearly to not have ex-husband to be the beneficiary.  We had some emails and the beneficiary change form to support our argument, but we knew it would be an uphill battle.

After two years of litigation (I had left the firm in the middle of the case), the two sides were able to settle on $1,000,000 for the husband, $500,000 for the young daughter.

Bottomline:  Who you want to inherit your things can change over time for a variety of reasons.  Divorce is clearly one of them.  Changing beneficiary forms is very important if they do not meet your wishes for inheritance provided to the right people.   It’s important to remember that when you are changing beneficiaries that you see it through.  That may not have mattered in this case because the HR Department screwed up, but on the other hand, it could have made all the difference for the young daughter.


Divorce and estate planning…

Divorce and estate planning…



There are a couple of different issues when you are talking about divorce and its effect on estate planning.

The first issue is what effect does divorce have on an estate plan.  Say you and your spouse created an estate plan that left everything to each other and then to your minor kids.  Now you are getting a divorce and wondering if the estate plan is still valid.  The answer is yes, the estate plan is still valid, but with a caveat.  First, once divorced, your existing estate plan will treat your spouse as if they predeceased you.  So, for example, let’s say you create a will in 2007 that leaves everything to your spouse then your kids equally.  In 2013, your divorce is finalized but a couple of years later you pass away and you are unmarried.  Under this scenario, the provision giving everything to spouse will be void and everything will pass directly to your kids equally.  So do you need a new estate plan?  Well technically no, but here’s the problem.  If your kids are minors, everything will end up in probate and this can avoided by creating either a testamentary trust or a living trust.  Thus, just because your spouse is now omitted from your estate plan doesn’t mean it is still the right plan.

Further, your other estate planning documents, such as your powers of attorney might mention your ex-spouse as your first power of attorney.  This can create a weird situation if you become incapacitated.  Technically, the document is not effective but what if the bank or the hospital doesn’t know that?  Based on the above, most of my clients opt to create a fresh estate plan.  There is something soothing knowing your ex-spouse’s name does not appear in the documents. .

Now, the other issue when you are getting divorced that sometimes pops up is whether an inheritance from your family remains your separate property, even if you commingled funds.  First, you should avoid the issue completely and, if possible, always keep a separate inheritance separate.  In any event, under Missouri law “marital property” includes all property acquired by either spouse after the marriage except property acquired by “gift, bequest, devise or descent” (RSMo. 452.330.2(1).

This would also include property acquired in exchange for property acquired by gift, bequest, devise or descent.  For example, wife inherits $50,000 from her grandmother after her marriage to husband.  She buys a luxurious diamond necklace with the $50,000.  Under Missouri law, the diamond necklace, since it was purchased with inherited money, should be deemed non-marital property.  The practical effect of this is that husband can make no valid claim of this property during the divorce.

Finally under Missouri law, inherited property does not become marital property because it may have been commingled with marital property.  Example:  Husband inherits $250,000 from his mother and puts the money in his joint checking account (marital property) with wife.  A few years later, husband and wife divorce.  If the $250,000 still remains in the account, it will be deemed husband’s separate property.  But this brings up the difficult issue of tracing.  Chances are that some of that money was used, so husband may have to trace what funds were used for what and that it is where the issue gets complex and expensive.  This might require a forensic accounting or an examination of each transaction made after the depositing of the inheritance money into the account.

Therefore, as a practical matter, the best practice is to keep your separate property inheritance as just that, separate property and held in a non-marital account.  Other factors to be considered are asset protection and the financial position of the parties.  But remember, if you keep the money separate and then use some of it for a marital purpose (family vacation, for example), the funds are still available for that purpose but much easier to track.

Finally, one issue that I see on occasion is a person who had an acrimonious divorce and has a hostile relationship with their former spouse.  Often, there may be some doubt as to whether this spouse is a responsible parent.  To be clear, with respect to estate planning, if you pass away, the other parent of your children has first rights to be the guardian of your children.  However, that still does not prevent you from expressing your wishes as to guardian(s) in case the other parent is not willing or is not qualified to act as guardian.  Thus, if you’re gone, you should still name your choices for guardians in case the other parent cannot qualify to act as guardian.  This may be for a variety of reasons or maybe they have little interest in being a parent in the first place.

There are many issues to consider before and after a divorce in relation to estate planning.  Always consult with a qualified and experienced estate planning attorney to get the best advice possible for your specific circumstances.