Estate Planning Pending Dissolution of a Marriage

(This is general information. It is not intended to be specific to your circumstances.)

If you are seeking legal advice about a possible dissolution of your marriage, you will also have some estate planning concerns. Fortunately, there is likely only a small chance of your death while your dissolution of marriage action is pending. But, an action for dissolution of marriage will last three months at a minimum, and many more months if there are differences which cannot be readily resolved.

The following are some commonly asked questions, and answers, about estate planning issues during a pending action for dissolution of marriage.

QUESTION: If I die will my spouse get my assets?

ANSWER: If you have a valid will, your separate property and your share of the community property will go to whoever you specify in your will. If you do not have a will, the legislature of the state of Washington has already determined where your estate will go. If you do not have a will, your spouse will receive:

  1. All of your share of the net community estate; AND
  2. One-half of your net separate estate if you have children; OR
  3. Three-quarters of the net separate estate if you have no children; OR
  4. All of the net separate estate, if you have no children nor parent nor children of parent.

Thus, your estranged spouse will receive a large share of your estate if you die without a will.

QUESTION: If I have a will, and leave my assets to my children, how can I make sure my spouse cannot control what I leave to my children.

ANSWER: If you are a formerly married person or a person with a pending dissolution of marriage action, you probably do not want your former or estranged spouse to have possession or control of assets that your children might receive if you died. We suggest leaving your assets to a trust that would become effective only if you died. You can appoint a trustee who will manage the assets for your children. Your trustee might be one of your close friends or relatives. Your former or estranged spouse would have no access to these assets.

QUESTION: What if I already have a will in which I am leaving something to my spouse?

ANSWER: Washington statutes provide that in most circumstances, at the time your marriage is dissolved, all provisions in the will in favor of or granting any interest or power to your former spouse are revoked, unless the will expressly provides otherwise. However, this provision is not effective while you are waiting for the dissolution of your marriage.

QUESTION: If I do not have that much in the way of assets, do I still need a will?

ANSWER: You may have more assets at your death than you think. Do you own a home? Do you have a retirement plan? You may have an insurance policy on your life. Some people have life insurance policies through their employer. If your estate is small, you may want to purchase an affordable life insurance policy to provide funds for your children when you die. Through planning, you can arrange that the insurance proceeds will be paid into the trust for your children that you set up in your will. This would be your gift to your children, and your former or estranged spouse would have no control over these funds.

QUESTION: Are there other reasons I might want a will?

ANSWER: If you are a parent of a minor child, you can specify in your will who you want to be the guardian of your minor children. The guardian is the person who will provide for your child (perhaps with your life insurance funds) and make decisions for your child which would normally be made by you. Usually, if a parent dies, and a child has another living parent, the child will live with the surviving parent, not the guardian you name. However, there can be circumstances where this may not be appropriate or possible.

QUESTION: Speaking of insurance, can I require that my spouse insure his/her life so that if my spouse dies, there will be insurance money to help me raise the children?

ANSWER: This question comes up frequently in marriage dissolution cases when there are children involved. You should talk about this with the lawyer handling your case and ask if this is appropriate in your particular situation.

QUESTION: Estate planning sounds like a good idea, but how much will it cost?

ANSWER: Estate plan documents that most single or separated persons will want include the following: Health Care Directive; Designation of Agent for Health Care Decisions; Individual Durable Power of Attorney; Life Insurance Beneficiary Designations; and a Will. We can discuss your specific circumstances and then give you an estimate. In most cases there is no charge for an initial consultation to determine which documents would be appropriate.

This information is general in nature and should not be relied upon for your specific circumstances. For information, questions, or comments, please contact Douglas J. Engel or Kathryn S. Kumar.