Nevada Estate Planning & Elder Law Information Blog

Consider the Effect of Your Will or Trust During a Divorce

Did you know that existing wills and trust are not invalidated by a divorce?  The law in Nevada provides that those provisions or awards to a spouse contained in a will or trust, will be invalidated by operation of law, however the other provisions of your estate plan will not be invalidated.  (See NRS 133.115 and NRS 163.565.  This means that bequests to your ex-husband's family, or designations of your ex in-laws as a guardian will continue to stand until the will or trust is revoked. 

Additionally, you should be aware that this statutory provision does not take effect until the divorce is final.  If the will or trust is not revoked and a party dies during the midst of the divorce litigation, the provisions of the surviving estate planning document will stand. Consequently, if you have a will or trust already in effect, and are going through a divorce, talk to your lawyer about revoking these provisions even before your divorce is over, so you can be sure that your estate plan reflects your true wishes in the event of an unforseen tragedy.

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Why Anyone Going Through a Divorce Can Benefit From Estate Planning - Part III

If you have children and are going through a divorce, or are otherwise terminating your relationship with your child's other parent, seeing an estate planning attorney should be one of your top priorities. Perhaps you have fears about your former spouse's ability to care for your child, or have concerns about your families' continued involvement with the child, in the event of your death or disability. Admittedly, the laws in the State of Nevada limit your options. There are presumptions under the law that the other parent should assume custody, prior to any other third party being nominated to care for the children. Nonetheless, the court will consider the concerns of a deceased parent in making a decision in the child's best interest, provided that such concerns are included in your estate planning documents.  Additionally, if it is your desire that your family have continued involvement with your child, having a statement from you supporting their efforts to establish grand-parental or extended party rights can be very helpful.

The larger concern with children, however, deals with how your financial estate would be distributed to your child in your absence. Children who are under the age of 18 cannot control their own assets. If they become the beneficiaries of your estate, a guardian will need to be appointed to control the assets until they become of age. Generally, the law will presume that the child's remaining parent should assume the role of guardian of the estate, unless you provide otherwise. You can use either a will or a trust to nominate a different guardian of the children's financial estate. Better yet, you can arrange for your assets to pass to a trust in your child's name. You can then designate and enforce the terms under which the assets will be distributed (such as the child's age, or the specific purpose of the distribution - like college expenses), you can decide the trustee of the trust, and can decide when the trust would end.

Why Anyone Going Through a Divorce Can Benefit From Estate Planning - Part II

If you and your spouse had estate planning documents drawn up during happier times in your relationship, a divorce is an important time to review those documents, as it is likely that the mutual goals and aspirations you once shared as a couple have changed. For instance, couples often execute reciprocal wills or trusts, in which they leave all their possessions to their spouse. Similarly, the spouse is often designated as the trustee or executor of the estate plan, and may even have power of attorney to act on the other spouse's behalf. If the two of you no longer want to spend your life together, chances are you no longer want that person making decisions for you as your power of attorney, or inheriting your estate under the terms of a previously executed will or trust. It is important for you to share a complete set of your estate planning documents with both your divorce attorney, and an estate planning attorney who can give you proper advice about modifying your plan to reflect your new intentions.

Why Anyone Going Through a Divorce Can Benefit From Estate Planning - Part I

So, you have just learned that your spouse wants a divorce.  Maybe you and your spouse have grown apart, or worse yet there has been infidelity, a financial loss putting a strain on the relationship, or a disagreement over family.  You are feeling hurt, confused and maybe even angry.  You probably know that it is important to seek counsel from a family lawyer about your rights during a divorce or legal separation, but did you also know that this is an important time to talk about estate planning?

If you do not have any existing estate planning documents, it is important for you to get information about what would happen to your assets, if you were to die or become incapacitated while the divorce action was pending.  In the state of Nevada, it is generally the rule that a party's marital interest in an asset or debt remains in effect until the divorce is final.  This means that even though a divorce has been filed and is in active litigation, were something to happen to you while that legal action was pending, your estranged spouse would continue to have a marital interest in your assets, and would under the law, be the natural beneficiary of your possessions. 

For example, the spouse of a divorcing party with no children, would be entitled to receive 100% of the other spouses assets, regardless of how advanced or acrimonious the divorce proceeding may be.   The good news, however, is that you can avoid this outcome by meeting with an estate planning attorney who can draft a will or trust which will overcome this legal presumption. 

You should also consider those assets in which you have already listed a beneficiary.  Certain assets cannot be changed without the divorcing spouse's consent, but other assets can be quickly and easily changed.  For example, beneficiary designations on life insurance policies, and certain types of IRAs can usually be altered without your spouses consent.  An estate planning attorney can help you make these changes, or alternatively you may be able to contact the carrier directly who can provide standardized forms for your use.