The Effect of a Divorce or Pending Divorce Proceedings on Estate and Disability Planning Documents

Estate and disability planning documents are affected in different ways by divorce proceedings and the entry of a divorce decree. It is very important that you review your estate and disability planning documents with an attorney if you or your spouse files a divorce complaint.

Power of Attorney - If you have designated your spouse as your agent under a power of attorney and, thereafter, either of you files for divorce, your designation of your spouse as agent is revoked as of the date the divorce action was filed, unless the power of attorney specifically reflects that the designation was intended to survive the divorce action.

Advance Health Care Directive (AHCD) or Health Care Power of Attorney - If you have either an AHCD or a health care power of attorney designating your spouse as your agent, and a divorce action is filed by either of you, the designation of your spouse as agent will be revoked, unless you’re your document clearly states that you want your spouse to remain as your agent in the event of a divorce. If you do not have either an AHCD or a health care power of attorney, the law provides for certain individuals to be named as your agent in the event you need someone to act for you. While your spouse is an individual who could act as your agent in this situation, a pending divorce action would prevent this.

Contracts with Beneficiary Designations - Beneficiary designations for your life insurance policy, annuity contract, pension or profit-sharing plan or other contract providing for payments to your spouse are handled differently than the foregoing situations. The filing of a divorce action does not automatically revoke these beneficiary designations. The designation of your spouse as beneficiary will be ineffective if, at the time of your death, you were divorced from your spouse or a divorce action was pending with grounds for the divorce having been established. There is an additional requirement that you be domiciled in Pennsylvania at the time of your death. The revocation will occur if all of these conditions are met unless your contract clearly states that designation of your spouse as beneficiary is to be honored even after the divorce if filed or finalized.

Remember that merely filing a divorce complaint does not guarantee that grounds for the divorce have been established. That is a matter of fact and evidence which can be rebutted by your spouse who will be disinherited. Failure to name a new beneficiary immediately upon the filing of divorce could have undesirable and unintended consequences.

Last Will and Testament - Unless it appears from your will that a bequest to your spouse was intended to survive a divorce, any provision in your will in favor of your spouse becomes ineffective upon entry of a divorce decree or if you die domiciled in Pennsylvania during the pendency of a divorce proceeding and grounds for the divorce have been established. The same problems are presented here in the case of a pending divorce. You should review your will with your attorney as soon as a divorce action is filed to determine if it needs to be changed.

Our law firm has divorce lawyers and estate planning lawyers who will work together to give you information and advice.