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Law Office of Gary R. Swavely, Jr. Blog

Friday, January 17, 2020

Divorce and Updating Your Estate Plan

Q: Should I update my estate plan during my divorce?

It’s a common scenario that most married couples, especially those with children, will have an estate plan drafted at some point during their marriage. What they may lose sight of in the turmoil that can accompany getting divorced in Pennsylvania is how important reviewing and updating their estate plan is – ideally as soon as possible after filing for divorce.

State laws differ and most states have provisions that completely or partially terminate a spouse’s right to inherit from and/or act as a fiduciary for their soon-to-ex-spouse. But the best way to guarantee your estate plan reflects your wishes after your decision to get divorced is to update the estate plan even before the divorce is final, as your family law attorney can tell you. Delaying updating your estate plan may open you up to your ex (or soon-to-be-ex) spouse potentially benefiting from your estate when you no longer want them to.

Many spouse’s rights under a will or revocable trust-- or even pursuant to beneficiary designations on non-probate assets like life insurance policies and retirement accounts-- are terminated by the entry of a divorce decree in most states. But whether they will be terminated after the commencement of divorce proceedings but prior to the entry of the decree is more complicated and may hinge on issues including whether the parties previously consented that the grounds for divorce existed.

Does a spouse’s authority under their spouse’s power of attorney end upon commencement of divorce proceedings?

Immediately upon filing for divorce, a spouse’s right to act as a fiduciary on their estranged spouse’s behalf is terminated. It makes complete sense for the law to assume in most cases that a couple in the throes of divorce would no longer want each other to have access and control over their financial or medical affairs if they became incapacitated in an accident or due to illness unless something clearly indicated otherwise.

So, after you visit your Pennsylvania divorce attorney, it may behoove you to revise your estate plan as well, with both attorneys keeping each other in the loop if circumstances warrant.

If you need assistance with an initial estate plan or would like to modify an existing one, the Law Office of Gary R. Swavely, Jr. can help you. Contact us today to schedule a consultation.

From our office in Reading, Pennsylvania, we represent clients throughout Reading and the surrounding counties in all aspects of family law and have enjoyed doing so for over 25 years.


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