By David L. Duff of Duff & Kronfeld, P.C. posted in Family Law on Friday, November 9, 2018.
If you are planning on getting a divorce, or beginning the process, it is imperative that you review your estate planning documents to reflect your wishes as the rules and laws are different for each. The following documents will need updating during this transition:
1. Last Will and Testament
Until a Final Order of Divorce has been entered with the Court, a spouse is entitled by law to inherit a portion of the marital estate, although you can try to expressly exclude your spouse from receiving anything under your Will. There are specific statutes in Virginia that allow a spouse to receive a portion of your Estate, regardless of what you say in your Will.
2. Durable Power of Attorney
Under Virginia Law, once a spouse files an action for divorce, separate maintenance, or for custody and visitation of a child, any Power of Attorney that you have executed is automatically terminated. So as to avoid any question, it is strongly recommended to revoke that Power of Attorney in writing. The last thing you would want is for your estranged spouse to retain the ability to act on your behalf, whether on financial matters, tax and property issues, bank accounts, investment accounts, incurring debt, etc.
3. Advanced Directive for Healthcare (combined Living Will and Medical Power of Attorney)
Unlike a Durable Power of Attorney, a Living Will and Medical Power of Attorney will remain in full force and effect unless they are both revoked in writing. Meaning, your soon-to-be ex-spouse will continue to make medical decisions on your behalf if they have been named as your agent. Therefore, it is strongly recommended to revoke and replace your Medical Power Attorney and Living Will and name a trusted individual, family member, adult child or friend, who can make medical decisions on your behalf should you become ill or injured and are unable to make these decisions. You can accomplish this in one document, an Advanced Directive for Healthcare.
4. Changing Beneficiaries . . .
Many people often overlook changing their beneficiary designation on bank accounts, life insurance or retirement plans when getting divorced. You are allowed to change beneficiaries on life insurance at any time. However, there are specific rules when changing a beneficiary on your 401-k, IRA or other retirement plan. Please consult with your attorney regarding retirement plans.
When preparing for divorce, it is of great importance to consult with an attorney or other professional to be sure your wishes are met in your estate planning documents. If you have any questions about any of these documents or your marital situation in general, call one of the attorneys at Duff & Kronfeld, P.C. for a complimentary 30-minute telephone consultation at (703) 591-7475.
The Virginia State Bar is also a great resource for information and forms such as estate planning documents. Go to www.vsb.org for more information.