Tiffany Brentley of Burns & Levinson LLP, has made available for download her article, “Altering Estate Plans Before or After Divorce,” published in JDSUPRA. The article begins as follows:
In the early stages of this blog, I reviewed and discussed several ways that we could “Learn from Famous Mistakes,” such as failing to update an estate plan post-divorce and dying while in the midst of divorce proceedings. These issues continue to arise in my practice with great frequency, and I thought it would be helpful to assimilate some advice here for those contemplating or going through divorce and those who have recently become divorced.
In most cases, nothing stops you from updating your estate plan prior to or during a divorce. The complication is that, in most cases, you cannot disinherit your spouse while you remain legally married. Even while divorce proceedings are pending, until the divorce is actually final, your spouse will retain statutory rights and protections. This may include a right to “exempt property” and/or a “discretionary family allowance,” as well as rights to claim a “spousal elective share” of your assets notwithstanding what your estate plan might otherwise provide. In Massachusetts, the spousal elective share currently allows the surviving spouse to receive $25,000 outright and a “life interest” in one-third of all remaining property. Particularly with respect to the life interest, these claims can add significant complexity to the administration of your estate and may thwart your intended disposition altogether.
Posted by Bennett Mansour, Associate Editor, Wealth Strategies Journal