Wills and Estates: Questions to Ask:
1. If I die before my divorce is final, won’t everything just go to my kids?
Not necessarily. Until your Decree of Divorce is entered, you are technically still legally married to your spouse. That means your estate could pass directly to your current spouse. Even scarier, without an estate plan, doctors may look to your spouse to make healthcare decisions for you.
2. If I die while divorcing, won’t someone in my family be appointed by the court to administer or distribute my estate, and keep it from my estranged spouse?
No. Actually, if you do not have an estate plan in place, your spouse will have all the legal rights as the marriage will entitle him or her to and could be appointed the Administrator of your Estate. While this appointment can be challenged, it can be costly and difficult.
3. You mean my estranged spouse gets everything, not my kids?
Yes, most likely, at least most of it, if not all (if it is all community property). By statute, if there is no Will, your spouse is entitled to 100% of your community property, and at least 50% of your separate property, with your kids getting the other 50% of your separate property (or if no kids, spouse 75% of separate property, and parents 25%) RCW 11.04.015. So if most of your assets are community property, your spouse would automatically get most of your estate, without a will.
4. Once I am divorced, my kids get it all, even without a Will, right?
Probably. The problem is that kids can’t inherit property. The court must appoint a Guardian manage the assets on the child’s behalf. Guess who is likely to be chosen? It’s likely to be the child’s surviving parent. With a proper estate plan, you can choose someone you trust to manage the assets.
5. My ex is not fit to raise our kids. How can I make sure my family raises our kids if I die?
Guardianship issues are complicated. It may not be possible. But, it is important to at least list someone you trust. The court makes the ultimate decision, but your intent as stated in your will can make it much easier for the person trying to be appointed guardian.
6. What if I become incapacitated before the divorce is final? Can I prevent my estranged spouse from making financial and healthcare decisions for me?
Yes, if you execute a power of attorney appointing someone you trust to make decisions for you. Otherwise, your spouse, even if estranged, is still legally married and may assert those rights depending on the situation, such as seen in the highly publicized Terri Schiavo case in Florida. It is important to clearly name the persons you want to make financial or medical decisions for you, if you are unable to do so.
7. The divorce is costing me a lot of money. Can I just do my own Will with a form off the internet and update it after the divorce?
It’s risky. You may have noticed that almost everything can be contested or negotiated during a divorce. Any Will used during a divorce is likely to be challenged by the surviving spouse, particularly if your estranged spouse is left nothing under your Will. There are very few “fill in the blank forms” for married people who have separated. The forms are for married or single, but may not work correctly for the married person who does not want their spouse as beneficiary or fiduciary.