What Happens if I Become Incapacitated or Die During Divorce?

What Happens if I Become Incapacitated or Die During Divorce?

During a divorce, people often worry most about what will happen to their finances and their children once the dust settles and they begin the process of rebuilding their lives. However, many people fail to prepare for what could happen should they become incapacitated or die during their divorce.

If you’re going through a divorce in Washington State, there are five important estate planning questions you should consider. They are:

  • What happens if I die during my divorce?
  • What happens if I become incapacitated during my divorce?
  • How can I protect myself during divorce?
  • How can I protect my children during divorce?
  • How can I make sure my share of community property goes to the people I want it to go to rather than my future ex-spouse if I become incapacitated or die during my divorce?

What happens if I die before finalizing my divorce?

If you should die during the divorce process without adequately planning for your death, your future ex-spouse can inherit your community property portion of your estate under Washington law. That’s because your surviving spouse is still technically your spouse until your divorce becomes final.

If you die after you or your spouse file a complaint for divorce, but before entry of judgment, your death will effectively terminate your divorce proceedings. In other words, your death extinguishes any right your future ex-spouse had to equitable distribution under Washington State divorce laws.

Given the court is one of equity, meaning, if your death would lead to an unfair result for your estranged spouse, whether they would receive too much or too little, the court could create a remedy it deems fair. In so doing, the court would analyze what impact your death had on the divorce versus what the likely result would have been if you didn’t die.

For instance, if you made provisions under your will for your spouse to receive specific assets, but they would have gotten more via a divorce proceeding, they could request the court to move forward with the divorce in your absence. Your spouse could also file a claim against your estate. If by way of another example, you die without changing your will, leaving your future ex-spouse all of your assets, your other survivors could seek remedy from the court.

The problem is all of these options leave the disposition of your divorce and, accordingly, your estate uncertain. They also potentially create a lot of aggravation for your survivors during an already emotional time.  

What happens if I become incapacitated or die during my divorce?

You may not realize that if you’re unable to make financial and or your health care decisions due to incapacity, your future ex-spouse would be able to make decisions for you.

For example, if you had a durable financial power of attorney in place, naming your spouse as your personal representative, it would still hold. In general, a durable financial power of attorney allows one individual to grant another named individual access to any accounts or assets in their name and act in their stead. A durable financial power of attorney is a type of power of attorney that stays in effect after a person becomes incapacitated

As for health care, well thought out estate plans have two advanced directives in place: a living will and a durable power of attorney for health care, also known as a medical power of attorney. The purpose of a living will is to outline your medical wishes should you become unable to communicate them yourself. A durable power of attorney for health care allows you to name a health care proxy, a designated individual to make decisions not covered in the living will on your behalf, including end-of-life decisions.

Choosing the appropriate person to be your health care proxy requires a lot of faith on your part that the person you designate will carry out your wishes. Though that may have been your spouse at one time, your soon-to-be-ex-spouse may no longer be the person you would want to make such critical decisions.

Health care proxies have become particularly relevant during the pandemic. If you become incapacitated during your divorce proceeding and don’t have a health care proxy, a close friend or relative can apply for guardianship. If no one is available, the court can appoint a guardian, someone neutral such as a lawyer.

There are two types of guardianships: a guardian of the estate and a guardian of the person. The former allows a named individual to govern your property. They can likewise negotiate on your behalf during a divorce proceeding. The latter enables an individual to make health care decisions for you.

The court can limit the scope of a guardian’s power depending on the level of your incapacity. But it’s critical to understand the position is a powerful one and why it’s best to make these designations while you can because the person the court chooses may not be the person you would want if you had a say. The process can also take time and become an added expense.

How can I protect myself if I become incapacitated or die during my divorce?

Many married couples name their spouse for these roles. If you have done so, in light of your divorce, you may want to consider who you could put in these positions instead. Even if the relationship you share with your future ex-spouse is good now, relationships during a divorce can sour quickly.

If you don’t already have these essential estate planning documents in place, divorce is the perfect occasion to create an estate plan. The individuals you name in a power of attorney, whether a financial power of attorney or medical power of attorney or as a health care proxy, should each be people you trust implicitly because, quite literally, you may be entrusting them with your life.

How can I protect my children if I become incapacitated or die during my divorce?

If you prepared your will during your marriage and named your spouse as a beneficiary, and then you die before finalizing your divorce, your surviving spouse, though estranged, can still inherit everything they’re entitled to under your will. Further, as is the case with most wills belonging to people who are married, if you nominated your spouse to serve as your personal representative but failed to amend your will during the divorce process, the court may have no other choice but to allow your future ex-spouse to serve in this role and administer your estate. 

It can be incredibly difficult for family, friends, and other beneficiaries to communicate with and get along with your future ex-spouse following your death. More importantly, having your future ex-spouse administering your assets can make it problematic for your children or other heirs to get the property distribution you intended for them.

Therefore, it’s worthwhile to change your will before beginning the divorce process or as soon as possible, even if it’s temporary. Doing so will allow you to maintain control and determine who should receive your estate if you become incapacitated or die during the divorce proceeding.

If you have children under 18, guardianship will typically shift automatically to your children’s other parent, unless that parent has also died, is unavailable, or refuses the position. Even so, it can still be helpful to make your wishes known if you and your future ex-spouse should both die.

How can I make sure my share of the property goes to the people I want it to go to rather than my future ex-spouse?

Should you die with your existing will in place, a will that names your spouse as your beneficiary means all of your assets will go to them. If you die without a will, otherwise known as intestate, your assets will still pass to your spouse even though you’re in the process of divorcing. Legally, you’re still married.

To ensure your assets go to the individuals you want them to, including your children, have an estate planning attorney draft a new will. When you make a new will, you revoke all previous wills you had and can name any beneficiaries you want.

As a matter of course, you should plan to revisit your will at regular intervals. You should also consider revising your will every time you experience a life passage that could possibly affect your estate.

  • Marriage or divorce
  • Birth or adoption of a new child or grandchild
  • Child or grandchild turns 18
  • Child or grandchild could benefit from educational funding
  • Guardian named in your will for minor children has a change of circumstance or dies
  • Your number of dependents, including the addition of caring for an adult, changes
  • Your spouse’s or your financial or other goals change
  • Your spouse becomes ill, disabled, or dies
  • Your life or long-term care insurance coverage changes
  • A family member becomes ill, disabled or dies
  • Your personal representative, guardian, or trustee has a change of circumstance or dies

Making specific changes to your will or drafting a new will can help ensure that your beneficiaries receive their benefits as you intend them to and the transfer is straightforward.

What questions should I ask myself before visiting an estate planning attorney during my divorce?

During the divorce process, there are many details to keep track of, and having to worry about which estate planning documents need to be updated or created can feel like the source of additional overwhelm. But the truth is there aren’t that many documents to address, and the value in doing an estate planning checkup can be immeasurable for you and your loved ones.

A knowledgeable estate planning attorney can help with the process. Here are a few questions to consider:

  • Do you wish to change the beneficiaries of your will?
  • Who do you want to be the executor (personal representative) of your will?
  • For children under 18, who do you want to be their guardian?
  • If you have a revocable trust, who do you want to be the trustee?
  • For assets outside the will, who do you want to name as beneficiaries?
  • Do you have an advance directive that includes a living will and durable power of attorney for finances or a durable power of attorney for health care? If so, do you wish to change the person named in one or both of these durable powers of attorney?

Hire a Seattle estate planning attorney today.

Estate planning is a critical part of the divorce process, given the impact that your incapacity or death could have on the disposition of your estate and the lives of your surviving loved ones. Because Seattle estate planning laws can become confusing, it’s crucial to have a knowledgeable estate planning lawyer by your side explaining why you’re taking the steps you are to protect yourself and your loved ones.

At Elise Buie Family Law Group, our empathetic Seattle estate planning attorneys appreciate how trying the divorce process can be. Our estate planning team also understands why thinking about what happens after you die may not be something you want to consider during an already emotional time and takes care to make estate planning run as smoothly as possible. Regardless of what stage you’re at in the divorce process, we can help. Give us a call today.


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