Date: February 28, 2011
By: Attorney Deborah L. O'Neill, Associate, DiFruscia Law Offices
In this, the fourth part of our series on marital dissolutions, we explore estate planning issues after a divorce. What follows is a discussion of the effect of divorce on certain estate documents.
1) Will. Divorce does not revoke your will, but it evokes any distribution to your former spouse, will revoke any power of appointment held by your former spouse, and it will revoke a nomination of your former spouse to serve as executor or testamentary trustee. This means that if you had a will prior to your divorce that left some or all of your property to your former spouse, that bequest fails. Your former spouse cannot serve as executor or as a trustee of any testamentary trust. If no alternate beneficiary or executor is named in your will your property will pass according to statute and an executor will need to be appointed.
2) Durable Power of Attorney. Divorce does not automatically revoke a durable power of attorney. This means that if you had a durable power of attorney before your divorce that named you former spouse as your Power of Attorney, that appointment is still valid. If you should for any reason become incapacitated your former spouse could step in and take over your affairs. This is not a situation most of us would want to be in.
3) Health Care Proxy. In Massachusetts, if you have a health care proxy that names your spouse as your health care agent, divorce revokes not only the appointment of your former spouse as agent, but revokes the whole document. This means that post divorce you have no health care proxy until you execute a new one. In New Hampshire, if you have a health care proxy that names your spouse as your health care agent, divorce revokes that appointment but the document is still valid if you have an alternate agent.
As you can see, divorce has a profound effect on your basic estate documents. If you are divorced, are in the middle of a divorce or are contemplating divorce you should consult an attorney about your estate documents. You do not want to end up unprotected.
If you have any questions please feel free to contact our office at 978-687-1777 or 603-898-8198 or contact me via email at doneill@difruscialaw.com.
Be sure to tune in to our cable television show, "The Law and You," hosted by Attorney Anthony DiFruscia of DiFruscia Law Offices, which airs on the Windham Cable Channel 21. This month's guest is attorney David Nixon of Manchester, New Hampshire. For more information, please contact Kelly O'Loughlin at (603) 434-0300.
