People rarely expect to get divorced when making their marriage vows at the alter. Yet, approximately 41 to 50 percent of first-time marriages end in separation. Likewise, people don't expect disease or death to strike while they are parting ways with their soon-to-be ex-spouses, but this happens often enough that some states have begun making laws to deal with the issue. If you want to prevent major complications developing with your spouse should you fall ill or pass away during your separation, here are two things you need to do before or soon after filing for divorce.
Create an Interim Will
Where you live will determine how the court handles your divorce should you die before you are legally separated from your spouse. In many states, such as New Jersey, the death of one spouse effectively terminates divorce proceedings, and the probate court takes over distribution of the decedent's estate if the person dies without a will. This means your spouse could potentially be awarded some or all of your assets, even if that's the last thing you want to have happen. For instance, in New Jersey again, your spouse will inherit everything if you don't have a will.
In other states, the family court will continue to preside over the divorce in certain situations. For example, in Pennsylvania, the family court will proceed as normal with the divorce if grounds for the separation have been established; otherwise, the case is sent to probate court.
To prevent your spouse from getting assets that you would rather go to someone else, it's essential that you update your existing will or create an interim will before or shortly after filing for divorce that details how you want your separate property and your share of the marital property to be handled in the event of your death. It's also essential that you change the name of the beneficiary on assets such as life insurance policies if that person is your spouse; otherwise, those benefits will go to your spouse regardless of what it says in your will.
Be aware, though, that some states don't allow you to leave a surviving spouse with nothing. These are typically the same states that end divorce proceedings upon the death of one of the parties involved. In this situation, you'll need to consult with an attorney about the provisions you must make in your will for your spouse to avoid having the court override your wishes and give your spouse property you would rather he or she not have.
Assign a Health Agent
Another problematic issue that may crop up during a divorce is that your spouse may be automatically authorized to make health decisions on your behalf if you become incapacitated. A high-profile example of this occurred recently when a popular reality star began making medical decisions for her husband who had fallen into a coma, even though the two had signed their divorce papers and were waiting for a judge's approval.
As you can imagine, this type of situation can lead to a bad outcome, especially if your separation from your spouse is acrimonious. So, in addition to creating a will, you should give medical power of attorney to someone you trust. This is a living will document that gives a person you designate the power to make medical decisions for you should you become incapacitated. The authority you give your representative can be as comprehensive or limited as you desire, and the designation can be permanent or made to expire after a certain period of time.
Assigning medical power of attorney to a friend or family member is a good idea in general. However, it's even more important to do this when going through a divorce because it will essentially keep your soon-to-be ex-spouse from potentially doing you harm while you're at your most vulnerable.
These issues are just some of many things you must consider when going through a divorce. Connect with a local divorce attorney for information about or assistance with these and other problems that may develop during your separation. A firm like Madison Law Firm PLLC can offer more information.