In a Rocky Marriage? Don’t Forget to Call an Estate Planning Attorney


Let’s be honest. It’s not likely that an estate planning attorney is going to be the first attorney you call when having marital troubles. And given the stress and cost of a divorce, it’s not likely you’ll want to add one to your list of contacts during the divorce or soon thereafter. 

Nevertheless, an estate planning attorney can help give you peace of mind throughout the process, working by your side and with your family law attorney before, during, and after a divorce to optimize your goals.

Before You File for Divorce

If you’re still married, it may surprise you to know that your spouse has many legal rights as they pertain to you. Some of these rights make sense in a healthy marriage; however, in an unhealthy one, what you don’t know can hurt you.

For example, by default, your spouse has priority in making health care decisions for you. This means that if you’re knocked unconscious in a car accident and your doctor needs consent to engage in a risky procedure, your spouse’s position outweighs that of, say, your mom, or your brother, or your cousin Sarah. In a healthy marriage, that may be fine. But in a marriage that’s on the rocks or in the process of dissolution, this can spell disaster.

Similar default rules exist in the case of death. I often explain to my clients that everyone has an estate plan in Illinois, whether they created one or not. Our Illinois legislators created a default estate plan for you too that favors a surviving spouse, providing that all of your estate goes to your surviving spouse if you die without kids, or half of your estate goes to your surviving spouse if you die with kids. 

These laws are laws of convenience, and in many cases, the default provisions are alterable.  Whether you love or despise your spouse, there may be reasons why you don’t want him/her/they managing your finances upon disability, or getting your assets at your death. You may trust your spouse, but fear that asking that they make health care decisions for you may add more to their plate than they can handle. Or, more darkly, you might not trust that your spouse has your best interests at heart when calling the health-care-related shots.

There are workarounds for these defaults. Some workarounds come in the form of durable powers of attorney. By preparing a durable power of attorney for healthcare and property, you can select someone other than a spouse to act as your agent in making health care and financial decisions for you during your disability. This is a powerful act to take when going through a drawn-out divorce, and one that can be handled relatively simply by a competent estate planning attorney.

While it’s relatively easy to name another person to act as your agent, it’s a little more difficult to keep a spouse from receiving your assets at your death. And a Last Will and Testament is not going to cut it. It may surprise you to know that if you set up a will that, say, disinherits your spouse, that will can be invalidated by your surviving spouse. Specifically, in Illinois, a spouse who has been disinherited from a will has the option, under statute, to renounce the will and take their “elective share.” For spouses without children, that share is one-half of the estate of the deceased spouse. For spouses with children, that share is one-third of the estate of a deceased spouse. Despite these provisions, in Illinois, there are workarounds for this too, workarounds that a competent estate planning attorney can navigate.

After You File for Divorce or Finalize the Divorce

Family lawyers and estate planning attorneys both emphasize the importance of understanding what are your current assets with the goal of ensuring that your long-term goals can be met. Typically, a marriage that ends in divorce does so through the use of a marital settlement agreement, whereby a married couple divvies up assets between each other, and if there are children involved, makes accommodations for supporting the children.

Although the marital settlement agreement answers critical questions like how assets will get divided and how custody of the children will be handled, it does not address other, key goal-oriented questions like, what happens if I become disabled or die – who is going to take care of me, my children, my house? When the most trusted person in your life no longer fits the bill, a well-crafted estate plan can be set up to fill the gap. 

By bringing in an estate planning attorney at this tumultuous time, your family law and estate planning attorneys can work together to ensure an estate plan is put together to account for contingencies that might otherwise have been non-issues had your marriage ended in a different way. In doing so, they can also ensure that the marital settlement agreement and estate plan align, and beneficiary designations are updated to reflect the settlement and estate plan in a coordinated fashion. 

So, wherever you are in a marriage, add an estate planning attorney to your team. You’ll be glad for the peace of mind that it gives you.

If you’re contemplating a divorce, going through a divorce, or just finalized a divorce, it’s time to talk to an estate planning attorney. 





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