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The interplay of estate planning and divorce in Massachusetts

Estate planning should be changed and updated following a divorce.

The end of a marriage is stressful and emotional. To add to that stress, there are countless decisions to consider. Where will you live? Who gets custody of your children? Can you afford two distinct households while the divorce is pending and afterwards? Will one party have to pay alimony?

In the midst of all these decisions, it can be easy to overlook a key element that could easily impact your life – and that of your heirs – for years to come: your estate plan.

Why is your estate plan important right now?

You may assume that you can put off dealing with your estate plan until way after the proverbial ink has dried on your divorce proceedings. Unfortunately, that might be too late.

As an example: you suffer a serious injury shortly after filing for divorce. You fully anticipate that the divorce will be contentious. You haven't updated your estate plan yet because you either forgot about it or you assumed there was plenty of time to do it in the future. You and your spouse, to say the least, don't see eye to eye anymore. Your injury-induced incapacity means that you can't currently make health care and financial decisions for yourself.

If you previously filed a will, power of attorney, or health care directive while married, chances are good that your spouse is both your main beneficiary of assets and is the key decision-maker in the event of illness or incapacity. Unless you updated things since the divorce was filed, your now-estranged spouse can still make important decisions on your behalf, access your financial accounts and even decide upon the care you receive while recovering.

The effect of divorce

In some states, divorce automatically revokes any previous will that you had - or at the very least, the provisions affecting your former spouse. Massachusetts is one of these states. (See Massachusetts General Laws Section 2-804 for more information.) This doesn't mean that you don't still have work to do, however.

Something that a divorce will not change in Massachusetts is contractual relationships. If, for example, you named your former spouse as the beneficiary of your life insurance policies, retirement accounts, stock holdings or other assets, these designations remain in spite of a divorce. The same is true for any irrevocable trusts wherein your spouse was named as the trustee (revocable trusts are indeed still revoked upon divorce). You will need to manually update each of these items, as you will need to change title on property you held as tenants in common. Keep in mind, though, that your ability to update some of these could be limited by your divorce property settlement.

As you can see, the interplay of divorce and estate planning is confusing and complicated. In order to ensure that your interests, your property and your wishes are truly honored, you need the skilled guidance of an estate planning attorney both during your divorce proceedings and afterwards.

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