A recent and worthwhile posting by fellow lawblogger Leanna Hamill on her Massachusetts Estate Planning and Elder Law Blog speaks to the estate complications that may arise in a divorce. Those of us who practice matrimonial law are all too familiar with the hazards and pitfalls that divorce poses.
There is probably no matrimonial lawyer who has spent substantial time in practice who has not had to deal with the disaster which occurs when a client dies before the entry of a divorce decree or the execution of a stipulation of settlement or separation agreement providing for the couple disinheriting each other. When that happens, as Ms. Hamill so aptly observes, the survivor will generally inherit all the property of the marriage.
The problem usually happens when a couple agrees in court to settle their divorce but no all-encompassing agreement is placed upon the record which, among other things, terminates the right to inherit. The lawyers then trot back to their respective offices, intent on negotiating and completing a written agreement.
It is a balancing of evils. On one hand, we are all a little gun-shy to place a final agreement on the record in a divorce where we reported to court expecting a full-blown trial and are happily surprised that our clients are willing to settle, albeit under the gun (or gavel) of a stern judge. In the heat of the moment , it is all too easy to leave out a significant item and commit malpractice most foul. Much better to draft a proper agreement on paper which embodies all of the elements required to settle that particular case.
This course of action, however leaves open the remote possibility that a client may die during the period of time it takes to finalize and execute a stipulation of settlement. As remote as that chance may be, it does happen every now and then, no matter how hard we try to avoid it. It happened to me twice in 34 years — both times with clients who were quite far from death’s door when we left the courthouse, or so we thought.
Clients need to realize that they take a risk in not getting their divorce agreements down on paper and signing off quickly in order to insure that their spouse will not inherit their entire marital estate.Keep on top of your attorney and make sure that the agreement is being promptly prepared. Do not put off going to your attorney’s office to provide additional information, review documents or sign your agreement. Keep your appointments.
Make sure you have changed the beneficiary on your insurance policies and retirement plans. This is important because these are self-directed assets which pass outside of your estate and are not controlled either by your will (or by the laws of intestacy if you are foolish enough not to have a will). If your spouse is a beneficiary on your old 401 k , he or she will be paid the benefits if you die. Remember that even if you have negotiated an agreement which allows you to keep these assets, the plan administrator will pay your spouse if you haven’t provided appropriate direction. Even if your estate is entitled to the money, it may have to sue to recover it should this happen.
Old insurance policies also require your attention when you divorce. As I have reported in the past, it is not uncommon for the benefits of GI life insurance policies issued in World War II to be paid to the girlfriends and fiancees of veterans who have not seen those people in sixty years! They simply neglected to update their policies.
Please also keep in mind that there are times when beneficiary changes are not properly recorded. It is a good idea to check with your insurance company and retirement plan administrator so that they do not make a clerical error which will cause your valuable benefits to go to someone you haven’t seen in years and do not like, rather than to a current spouse or loyal children.