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Estate Planning and Divorce in Massachusetts

By Howard Goldstein, Esquire

Couples in the midst of divorce, and afterward should not lose sight of the need for estate planning during the process. One more thing to worry about... and one more thing to see a lawyer about.

When you consider that most couples estate plans provide that all of their property should go to the other and that each of them is nominated as the legal representative of the other in the case of death, disability, or inability to make health care decisions, it is obvious that when your marriage is in trouble these issues need to be looked at again.

Here are the areas that require attention:

Your Will does not get revoked just because you file for divorce. In Massachusetts, even after you have been to court for your divorce, there are waiting periods of three to four months, during which you remain legally married to your former spouse. This means that unless your divorce agreement provides otherwise, your soon to be ex-spouse may inherit some or all of your assets, to the detriment of your children, parents or siblings, depending upon what your prior Will says. You should change your Will as soon as you determine that your marriage is over, whether you have actually filed for divorce or not. You do not need your spouse's consent to change your Will. The Will provides for nomination of guardians for your children, executor of your estate, Trustees of your Trust, and disposition of your assets on your death. All of your previous choices about these issues will change as you face the end of your marriage.
Health Care Proxy
A health care proxy empowers someone of your choosing to make any decisions about your health care which you are unable to make yourself, such as what kind of treatment, whether to have surgery or not, and how much pain medicine you are to receive. These are not decisions that should be made by your soon to be ex-spouse! It is a relatively simple document that can easily be prepared by your lawyer.
Durable Power of Attorney
A durable power of attorney gives someone you trust the ability to get access to your finances and assets, in case you are unable to do so yourself. The person you designate can do everything you could do for yourself, if the power of attorney is properly drafted, such as check writing, collecting rents, repairing your home, selling your house or car, or trading stocks or other investments. During an extended period of disability, the last thing you would want is for your soon to be ex-spouse to be managing your financial affairs.
Retirement plans, life insurance and other investment assets.
In Massachusetts there is an automatic restraining order affecting finances, that takes effect upon commencement of legal divorce proceedings. Among other things, this restraining order prohibits any changes in beneficiaries of life insurance or pension or retirement plans. However, until formal proceedings are commenced, there is no such prohibition on changing these beneficiaries, except for certain retirement plans covered by ERISA and/or other regulations of your employer. There are large numbers of assets that are not in any way restricted such as private annuities, IRAs, Employee Stock ownership plans, US Savings Bonds, and you should investigate which ones can be changed, and whether they require your spouse's consent. You must make any changes before formal proceedings are filed, or you will be violating the automatic restraining order and there could be very severe consequences for any such violation.
This article is intended to highlight the estate planning issues that people who are divorcing need to consider. It is a good idea to discuss all of these things with your divorce lawyer, and if he/she cannot help you deal with them, you should ask for a referral to a good estate planning attorney who can prepare your documents and help you with the choices you have to make.

Howard Goldstein is trained mediator and a partner with the law firm of Rosenberg, Freeman & Goldstein. He has been providing representation in family law and divorce since 1973 and is on the Board of Directors of the Massachusetts Council on Family Mediation and Board of Directors of the Massachusetts Collaborative Law Council.

He can be contacted by phone at (617)964-7000 or
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