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I’m going through a divorce, what does this mean for my estate plan?

by | Dec 21, 2020 | Estate Planning

Going through a divorce is a time of re-evaluating for most individuals. So now is a great opportunity to review your Last Will and Testament, Healthcare Directive, and Power of Attorney. Statistically, most Americans do not have a Will. If you are in that camp it is not too late. If you do not have an estate plan in place, now is the time to have an attorney draft these documents for you.

O.C.G.A. § 53-4-49 provides that all Will provisions leaving property to a former spouse are automatically revoked when the final divorce decree is issued. Your soon to be ex-spouse will be treated as predeceasing you under your current Will. However, many individuals want to update their wills following a divorce to remove their former spouse from the Will completely. Even though Georgia law automatically revokes the property distributions to an ex-spouse, it is advisable to update your estate plan following all major life events, including a divorce.

Updating your Will to remove your former spouse generally provides the peace of mind that your ex-spouse will not be able to argue that you intended to keep him or her a beneficiary of your estate in the event of divorce. Hopefully, your estate planner made the property distributions to your former spouse dependent on being married at the time of your death. However, it is possible that your Will could leave property to your ex-spouse regardless of whether you are married to one another at the time of your death. If this is the case, Georgia law does not revoke the provisions leaving property to your former spouse. You should have your Will reviewed by an attorney to ensure that the distributions to your ex-spouse are not in effect despite your marital status.

Under O.C.G.A. § 29-2-3, if you and your former spouse have minor children at the time of your death, then your former spouse automatically becomes the sole natural guardian of minors. Your ex-spouse becomes the guardian of the minor children even if you had sole custody of the minor children. Your estate plan can nominate the back-up guardians in case your former spouse is also deceased at the time of your death. Although, this scenario may seem unlikely, it is advisable to nominate back-up guardians in your Will in case the worse was to happen. Unless an objection is filed and as long as the nominated guardian is willing to serve, the Court will issue letters of guardianship to your back-up nominated guardian pursuant to O.C.G.A. § 29-2-4.

While Georgia law provides that your former spouse becomes the automatic sole natural guardian of the minor children you and your former spouse share, you can prevent your former spouse from controlling the inheritance you leave to your minor children by establishing a trust for the benefit of your minor children. Depending on your financial situation, your attorney may recommend a Testamentary Trust within your Will or a Revocable Living Trust outside of your Will. If your child has special needs and qualifies for needs based government assistance, your attorney will recommend a Supplemental Needs Trust for the child’s benefit. No matter the type of trust your attorney recommends, you will need a trust for your minor children. If a trust is not in place, then all property left to minor children is managed by their Guardian, who in your case is your former spouse. To avoid your former spouse managing your child’s inheritance, you should nominate a Trustee and specify in the trust how you want the child’s inheritance to be managed and distributed.

The end of an old year, the beginning of a new one, the passage of one chapter in your life into a new one is a great time to reassess your current estate plan or create one if you haven’t already. If you are interested, feel free to contact our office today to set up a consultation with one of our Estate Planning and Family Law Attorneys.

Cara Schlosser

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