Saying “I do” typically comes with a ring, but it doesn’t always come with forever. So here you are, preparing for a divorce, and you realize that there’s so much to do. You realize that planning a wedding was much easier than planning for a divorce and the new estate planning that comes with it. The thing about estate planning that differs from getting married is that you cant always control how the marriage goes. In estate planning if you act fast a with precision you can determine exactly how your assets are divided after you pass. Take the time and get your estate plan updated so that it reflects where you are today in life once the divorce is over.
You should do your estate planning carefully and meticulously. After all, it’s how you will protect your property and money during and after your lifetime. In your estate plan, you’ll describe how you want to distribute and manage your property. If you’re divorcing, there are a few things to consider before you begin developing an estate plan.
What To Consider
Before you can begin your estate planning amid a divorce, you’ll need to know what is likely to remain yours and what property you might lose. Some questions to consider are:
- Will your spouse request permanent alimony?
- Did you and you spouse create joint wills?
- Will your spouse take you out of the will (if there is one) so that you don’t get certain anticipated property?
- Will the judge order you to sell your home and divide the profit?
- If you get the house is it deeded to you now and how are you going to deed it going forward.
- Was your business yours before or after you married?
- How much of your pension was earned before and during your marriage?
- How much of your retirement benefits did you accumulate during your marriage?
- Have you divided the retirement in a Quadro?
Community Property Laws
Your first thought might be to move your assets around before you get a divorce. Well, don’t jump the gun. Oklahoma is a community property state. This means that, unless you have signed documents stating otherwise, any property, such as a vehicle, furniture, or stocks, and any money that you had before your marriage will remain yours after the marriage dissolves. On the other hand, a judge will evenly divide the property and money you accumulated during the marriage between you and your ex. This division of marital property also incudes the division of marital debt.
By evenly, we do not mean that you get half, and your ex gets half. Instead, a judge will review several factors to decide which assets go where. For example, suppose you are more able-bodied than your soon-to-be-ex-spouse, or perhaps you won’t be the custodial parent. In these cases, a judge will likely consider it fair to award more assets to your ex. If you were the primary income earner, a judge might insist that you pay alimony.
But let’s suppose you’re the heir to your grandfather’s five acres of land and horse stable. You became the owner of these properties during your marriage. Under Oklahoma state laws, community property rules don’t apply to inherited property, even if you inherited it after your wedding. Likewise, if a friend or someone other than your soon-to-be-ex-spouse gave you something as a gift, such as a car, you do not have to worry about losing it in the divorce. Exceptions do apply, however.
What About My Will After Divorce
If you are in the middle of your divorce and you predecease your soon to be ex-wife the provisions in your will is carried out as you are still married. On the other-hand if you die after the divorce is complete many states treat the will as revoked. Still other states treat the provisions in the will valid but as to your ex-wife the court treats it as if she predeceased you. A best practice in estate planning is to change the will regardless how the state treats divorce.
Power of Attorney and Health Care Directives
Prior to the divorce a well drafted estate plan includes health care directives and powers of attorney. Although everyone is a little different in their approach you probably have the following documents prepared;
- General Power of Attorney; This is a power that you provide another giving them a power to act for you in all matters. They act for you so long as they do so for your benefit.
- Durable Power Of Attorney; This power is one that survives your incapacity. The language creating the power must be specific and clearly state its durability.
- Health Care Directive; This is the document that gives instructions to health care providers on who is to make life saving medical decisions for you if you become incapacitated.
When you set up your estate plan you might have set up a trust. The type of trust you created is dependent on what your goals were at the time it was created. Some trusts are designed to provide educational gifts to your minor children while still others were done for asset protection or tax benefits. Regardless of the kind of trust you have its important you examine them and revise them to reflect your new life goals now that your are divorced.
Divorce and Estate Planning
Estate planning during or after a divorce is important. Although some will and trust provisions are revoked by a divorce you still must act. Estate planning is not always the most pleasant thing you do and this can lead to a delay. The problem is that we never know what and when bad things happen. With this in mind its important that we begin to consider the impact of divorce on our estate plan before while and after the final decree is entered. Get a free consultation with one of our Oklahoma attorneys by calling 918.743.2233 or contact us online.
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