You’re in the middle of divorce proceedings and then the unthinkable happens. Your soon-to-be-ex-spouse dies. What now? It depends on how the deceased spouse prepared, or didn’t, for this possibility. As should happen with many life events, an estate plan should be reviewed as soon as divorce is contemplated or has begun. In Pennsylvania, once a divorce complaint is filed, certain aspects of your estate plan will automatically change upon filing. Other aspects of your estate plan will change once grounds for divorce have been established. Some of these automatic changes you may want, others, however, you may not, or may have not even thought about.
Powers of Attorney are revoked as soon as a Divorce Complaint is filed.
If you have assigned your spouse as your agent in a General Power of Attorney and/or a Health Care Power of Attorney, under Pennsylvania law that designation of the spouse as agent is automatically revoked when the divorce action is taken. That may be a relief to some, but what if the divorce is amicable and you want your soon-to-be-former spouse to remain your agent? It must explicitly be clear in your Power of Attorney document that it is your wish that your agent designation survives the filing and occurrence of divorce.
The application of certain Will provisions depends on the stage of the divorce.
For the most part, married couples use their wills to leave their entire estate to the surviving spouse. These provisions generally become ineffective upon the issuance of a divorce decree. They also become ineffective before a divorce is final if the person dies during the course of divorce proceedings and grounds for divorce have been established. When this occurs, the divorce proceeds with the executor or administrator acting on behalf of the decedent; the divorce code applies rather than the rules governing probate.
What happens if one spouse changes their Will, writing the other out, and leaving everything to the children? The surviving spouse may elect against the will of the deceased spouse and claim a share of the estate. However, this share can be forfeited under certain circumstances or if grounds for divorce have been established.
What if there is no Will?
Under Pennsylvania law a spouse is entitled to a share of the deceased spouse’s estate whether there is a Will or not. The amount of the share is governed by the rules of intestacy. If a divorce is pending, the surviving spouse may elect to take their share of the estate. This share can be forfeited by the surviving spouse in certain instances. One such instance would be adultery. A second would be when grounds for divorce have been established. In that case, the matter would proceed under the divorce code rather than by the rules of probate.
There are also trickle-down ramifications to provisions in your Will. For example, while your former spouse may be eliminated from your Will as a beneficiary or executor, that elimination does not extend past them. Specific bequests to members of the deceased spouse’s family/friends are not automatically eliminated.
Filing for divorce? Review your estate plan.
We are all aware that divorce causes a major shift in both personal dynamics and finances almost immediately. We should also be mindful that divorce can have a dramatic impact on our estate planning goals. A re-examination of your estate planning documents and goals should ideally be a consideration as soon as divorce is contemplated so that it can be addressed as the divorce progresses.
The attorneys at Weber, Kracht & Chellew are skilled and well-experienced with estate planning as well as divorce. Our dedicated attorneys have assisted many clients in navigating this terrain. We stand ready to help our clients when needed. Call us at 215-257-5114 to get started.
Kathryn Liebhaber is an associate attorney here at Weber Kracht and Chellew. Driven by her desire to make a positive impact on the lives of her clients. Kathryn’s straightforward approach and thorough preparation instill her clients with confidence that she will be a dedicated and zealous advocate on their behalf. Kathryn’s expertise in estate planning and administration helps individuals and families prepare for the future through the use of wills, trusts, powers of attorney, and other means and will caringly navigate her clients through the complex probate process. Her practice also includes representing clients in divorce, custody, child support, alimony, Protection from Abuse, grandparent rights, and the unique needs of LGBTQ clients.
This article is designed for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.
