Step two in any divorce proceeding: see an estate planning attorney.

• Author: Baskies, Jeffrey A.
• Position: Florida

This article addresses why family lawyers should always advise their divorcing clients to meet with an estate planning attorney.

I will not argue whether estate planning should be reviewed immediately prior to or immediately after any divorce filing. While arguments can be made as to why the estate planning probably should be done even before a divorce is initiated, I will assume the client (herein referred to as the "client spouse" and referred to in the feminine) has already met with a divorce attorney. This article is intended to shed light on why the next step--step two in the process--should be addressing the client spouse's estate planning. I urge the family lawyers I know to have all new divorce clients see an estate planning attorney as soon as possible after the initial divorce consultation. I would meet during the initial consultation, if they'd invite me. Simply put, any attorney representing a client spouse involved in a divorce proceeding should strongly urge the client spouse to spend at least an hour with an estate planning attorney.

Why should divorce proceedings automatically lead to estate planning? There are several vital reasons.

Revising Existing Documents

As a result of the divorce, it seems likely that the mutual goals and aspirations of the client spouse and the husband from whom a divorce is being sought (herein referred to as the "divorcing spouse" and referred to in the masculine) have been altered. Those mutual goals may have been expressed in prior estate planning. Such reciprocal estate plans likely need to be revised.

During happier times in their marriages, many client spouses created estate planning documents leaving everything to their spouses. Such wills or revocable trusts undoubtedly expressed the client spouse's intent at that time; however, assuredly, the client spouse's attitudes changed once the divorce began. If the client spouse does not want to spend the rest of her life with the divorcing spouse, it is unlikely she intends to leave all of her assets to him if she dies. Yet, unless she sees her estate planning attorney, that may well be what happens.

Therefore, it is imperative for the divorcing spouse to see a competent estate planning attorney as soon after the divorce is initiated as possible. The client spouse needs to provide copies of any existing estate planning documents (wills and trusts--revocable or irrevocable) plus an accurate inventory of assets. Then the estate planning attorney can properly advise her how her assets will pass on her death. Assuming the client spouse has new estate planning goals, the client spouse and the estate planning attorney should address how to best achieve those interests. Most likely the client spouse will need new estate planning documents entirely. Moreover, the client spouse may need to consider other means of asset disposition in order to minimize elective share (as described in more detail below). Nevertheless, the process must be initiated and the client spouse must begin to examine the...