How to Deal with a Divorce in Your Estate Plan

By Patricia Louise Nelson of Two Spruce Law

There are a couple of times you when being divorced and being in the process of getting divorce justifies updating your estate plan. One situation is if you are getting divorced and you want to avoid your soon-to-be-ex-spouse from receiving any of your assets.  The other situation is if you get divorced after putting in place an estate plan that benefits your former spouse.

During the process of divorcing, you are allowed to prepare a new estate plan intentionally giving your spouse nothing, if you are no longer living together as a married couple.  If you need to live together as a couple, your soon-to-be-former spouse is entitled to an “elective share” under Oregon law.  The elective share is a portion of your assets. It is a sliding scale, which depends on the length of the marriage.  The longer the marriage, the higher percent of your assets to which your spouse is entitled. Give us a call so we can help you figure out how the Oregon elective share impacts your situation.  Of course, if you have a prenuptial agreement, you are likely allowed to leave nothing to your former spouse, depending on the terms of the prenuptial agreement.

The second situation is if you get divorced after your estate plan is in place.  In this situation, the provisions in the estate plan naming the now-former spouse as a fiduciary or giving the now-former spouse assets are revoked by the divorce process.  The estate planning documents do not need to be changed unless you want some other terms changed – the spouse is removed by the divorce paperwork. Often, the estate plan needs to be updated for other reasons, so if you are not sure then call us to discuss the terms of your estate plan in light of your divorce.