Estate planning is frequently viewed as a static event—a document signed and filed away.
However, when a separation or divorce begins, a dynamic, high-stakes process is set in motion. This paper serves to bridge the gap between family law and estate planning, to ensure that a client’s legal and financial architecture does not collapse during their most vulnerable transition.
Dispelling the “Final Decree” Myth
There is a dangerous, widespread assumption among both clients and many attorneys that that the filing of a divorce petition automatically severs inheritance rights. This is a fallacy.
In reality, in many jurisdictions, until a final judgment is entered, the “soon-to-be-ex” remains the legal next-of-kin, the default trustee, and in some cases, the primary beneficiary.
Many professionals mistakenly believe that estate planning needs to wait until the Final Decree. This is also not true.
In the era of silver divorce, where many people are divorcing at age 50 and over, the risks of mental or physical illness and even death are rising. Without immediate estate planning intervention, when a client become incapacited or dies mid-divorce a legal landscape of competing laws and practices looms ahead.
The Convergence of Practice Areas: A Multi-Dimensional Opportunity
Navigating a mid-divorce death requires more than “solid” lawyering. It requires that the advisor have a solid grip on convergence of family law, trusts and probate laws and even ERISA rules. Each of these areas alone is dynamic and complex.
By integrating estate planning with the divorce process, we can more swiftly arrange for management of accounts and property, give clients emotional security during a time of chaos, leverage professional synergy and even delegate a successor to see the divorce process to finality.
Estate Planning as part of the Matrimonial Workflow
The “Early-and-Often” applies here.
The family law attorney should not view estate planning as a post-divorce “closing item”. Instead, it must be woven through the entire process. Waiting for the Final Decree to address is a risky game and gambles with the client’s financial and personal legacy.
If possible bring a trusts and estates attorney onto the team before filing. If not, discuss the importance of revising the estate plan with your client early and often.
When your client meets with an attorney for an estate plan that bridges the married and single status, they not only can avoid problems but also may raise points that can be negotiated as part of the Settlement Agreement. For example agreement on a guardian for minor children in the event both parents pass can be a major win a divorcing couple.
An interim estate plan acts as a “bridge” to decide what happens to property and accounts specifically during the pendency of the divorce. This is the only mechanism to override default statutory outcomes while the parties are still legally “married” but functionally estranged.
The Professional Risk of Being Silent
“It is better to advise and be ignored than to be silent and be sued.”
Professional power is built on competence, and nothing erodes competence like a malpractice claim. The landmark case of Smith v. Lewis serves as a stark reminder: an attorney can be held liable for failing to research and advise on unsettled or “obvious” areas of law. For this reason, you must include a discussion of estate planning as part of your process.
Many attorneys believe that estate planning can only be done when a Final Decree is issued. This is not the case. A Bridge estate plan can span the gap.
To serve the client effectively—and to insulate your firm from liability. At a minimum, every divorce file should include:
- A documented conversation regarding the risks of death/incapacity during the case. Ideally the estate planning attorney is brought in before a petition is even filed.
- The estate planning attorney’s analysis of the proposed Settlement Agreement for gaps and ambiguities.
- A formal letter advising the client to consult with an estate planning attorney to finalize an interim plan.
Are you a Family Law attorney and want to know more about delivering the best quality of service and advice to your clients? Let’s connect.
Are you considering divorce or mid-divorce and want to know about our Bridge Estate Plans? Let’s connect.
Law Office of Christina Gorokhovsky 