Estate Tips for a Young Family After Divorce

By Colin B. May, Esquire
Estate Planning Attorney

In all likelihood, if you and an ex-spouse made an estate plan together, that plan mentions your ex-spouse’s name quite frequently. Maybe they are listed as your executor, maybe your agent under power of attorney, or maybe even the person who would receive your property if you were no longer around! Most people do not intend this result following a divorce. Thankfully, the Pennsylvania legislature recognizes that this is not what most people intend following a divorce and automatically nullifies many beneficiary designations or provisions in a will “in favor or relating to” an ex-spouse unless it appears that the provision was intended to survive the divorce.

What a relief, right? Well, not so fast.

The Double Edged Sword of Pennsylvania Law
We often advise clients that the state statute should be an absolute last resort as it is intended as a failsafe for those who didn’t bother to plan or update an existing plan. You see, while there are some built-in safeguards that appear to be helpful, there are others which may actually run counter to our very intentions. One such example that we will discuss involves divorced parents of minor children.

The Example of Frank and Kelly
Let’s talk about a hypothetical couple who were recently divorced- we’ll call them Frank and Kelly. Frank and Kelly have two children under the age of 18. Suppose that among other issues, Frank and Kelly were not seeing eye-to-eye financially. Frank believed that Kelly’s spending on gifts for the kids was at times excessive and not always in their best interest.

Three years ago, when things were good, Frank and Kelly made a very simple will-based plan that named the other spouse as agent under power of attorney, executor under the will, and gave all property to the other person, and if they were not around, equally to the children. At the time, this plan made sense because Frank and Kelly were still happily in love and imagined their life, growing old together, and passing their life’s legacy to their adult children. 

In reality, the divorce was finalized a year ago and the couple now live separate lives. Suppose further that Frank was in a serious accident and unexpectedly passes away. What happens to his property now? Well, we’d look to his will and we’d be able to rely on the law and confidently say that the provisions relating to his wife weren’t intended to survive divorce so we can skip over Kelly as his beneficiary. In this case, the property would pass to the kids. Recall, however,  that the kids are minors. One of our Pennsylvania safeguards says that we can skip over Kelly as a beneficiary and executor. However, another law covers what becomes of our property if we pass it by inheritance to a minor beneficiary. Chapter 51 of Pennsylvania’s probate code provides that when an inheritance is $25,000, the entirety of the estate can be disposed of by the minor, or worse, the parent of the minor. With estates exceeding $25,000 a guardian of the estate of the minor will be appointed by the court. The statute does prevent a parent serving with sole authority in this capacity, but does allow a parent to be a co-guardian. In both cases, responsibility over Frank’s inheritance may vest with the very person he was seeking to keep it away from.

Is this what Frank intended? Probably not.  Let’s give this another shot.

The Example of Frank and Kelly: Revisited
Suppose that instead of letting state law run its course, Frank is instead proactive and decides to  update his plan. What types of things should he consider in doing so? First, he should consider if his ex-spouse is listed as a joint account owner, beneficiary in his will, trustee, trust beneficiary, agent under power of attorney or any other position in his estate plan. For an-depth look on things to consider following a divorce, see our article here. Reviewing these changes might make Frank consider how he plans on passing property to his children. He will likely still want to pass his lifesavings for the benefit of his children, but maybe he’d consider placing this property in trust with his Mom, Dad, or sibling serving as a trustee. A well-crafted estate plan could make this happen. In doing so, Frank’s estate would no longer be at the mercy of the state’s “one size fits all” approach that may have unexpected consequences.

It is important to think about these things and how best to protect your family following a major change such as a divorce. In this time of emotional turmoil, there are so many things to think about and this issue is only one among many. In the period when a divorce is contemplated, pending, or finalized, it is critical that you sit down and discuss how your estate plan fits into this next chapter of you and your children’s lives. 

Please contact us if you have questions regarding your estate plan and how it is affected by a divorce.