If We Had Certain Assets In A Trust When We’re Married And Now We’ve Divorced, Assets Have Been Split, My Husband Has X, Y And Z Now, How Does That Impact Those Assets If They Were In A Trust Where We’re Both Named?
We would have to look at the trust to see what it says. If I had a client who was divorcing and had this trust and had joint assets in this trust, we would have to pull the trust to see what it says, but we need to address the trust because that’s a marital asset. That’s assuming many things. That’s assuming they’re the trustees, and it is a revocable trust. So when a client is divorcing or trying to work on a dissolution, we need to pull that trust to see what it says first.
If they have full control of transferring assets, I would suggest going through the divorce, the divorce decree, and the divorce paperwork. We allocate who’s responsible for what and go from there.
Should I Wait To Make Any Changes To My Estate Planning Documents Until My Divorce Is Final Or Can I Go Ahead And Start Making Changes Now While We’re In The Separation Or Divorcing Phase?
In Ohio, there are surviving spouse’s rights. So, if you don’t name your spouse in a will and you’re still married, that spouse is entitled to their elected spouse’s share. So they can elect to take under the will or to get their elected spouse’s share. So no matter what your will says, if you’re going to change it, your spouse still has those rights under Ohio law. It’s best not to change your estate planning until after you’re divorced, or your marriage is dissolved.
Is There Anything Else Regarding Estate Planning And Divorce Matters That We Didn’t Touch On That Is Important To Include?
I think the biggest mistake that I see is the divorce process takes an emotional toll on the clients. It’s a life-changing event, it’s very emotional, and I think once clients are done with the court process, they’re done altogether. What a client doesn’t do is update their estate planning or have an estate plan when they’re divorced, or their marriage is dissolved. I don’t think they realize how important it is, especially with children, to update your estate plan. Once they’re done with their divorce, they’re done. They don’t want to take the next step and do an estate plan. The estate planning package that we offer, it’s a catchall, and it’s straightforward and easy process. I tell clients we can make it as complicated as we want to or make it simple. Nine times out of ten, they want a simple estate plan. They don’t want the headaches of a divorce or dissolution, they want it nice and simple, and we offer that at my office. So, I think clients would realize, “Well, this is a simple estate planning package that they offer,” and we can do it.
I think many people wait until the last minute. I have many clients to come to my office when they’ve been diagnosed with a terminal illness. Only then will they come in. A lot of people just wait till the last minute to do that.
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