How Divorce Affects Your Idaho Estate Plan

By Lane V. Erickson, Idaho Estate Planning Attorney

When it comes to Idaho estate planning there are many circumstances that could arise in life that may require you to make changes to your estate planning to keep it updated and current. One of the biggest events that could occur in a person's life is that they become divorced. The reason this is significant is because normally person will have their spouse listed not only as a beneficiary of their estate but also likely as a person named to carry out certain specific functions such as a serving as the personal representative under the last will and testament or as a trustee in a trust. Well there are some specific statutory protections that would keep an ex-spouse from inheriting or serving in a fiduciary capacity, a divorce is one of the major life events that should result in a person immediately changing their estate plan.

Our goal as Idaho estate planning attorneys is to assist each individual client and making sure that their estate plan is current and that it needs their own specific needs. We regularly advise our clients that if they go through a major life change such as a divorce, they should immediately update their estate planning so that they can have an assurance that it will still do for them everything they need and want. Our team of premier Idaho estate planning attorneys works to assure that each person's estate plan is customized. Our team consists of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each of the attorneys on our team has years of experience and knowledge in helping each of our clients create a plan designed specifically for them and their circumstances.

Obviously, a divorce is a major life change for most people. Relationships that once existed no longer do. Because of this, the trust that may have been placed in your now ex-spouse as a part of your estate planning likely no longer exists. If you are divorced and you do not make a change to your estate plan here is how your estate plan could be affected.

The first thing we will discuss is how a divorce would affect your estate if you do not have an estate plan in place. In other words, we are assuming that you do not have a written last will and testament in place that names your ex-spouse as a beneficiary or as your personal representative. In this instance Idaho's intestacy statutes work to specifically protect you from your ex-spouse seeking to become an heir or to be in charge of your estate after you die. Putting it simply, Idaho statutes state that

An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, he/she is married to the decedent at the time of death. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section.

Idaho Code § 15-2-802.

The reason this is important is because Idaho's intestate statutes provide the highest priority to a spouse as both a beneficiary and as an individual named to be the personal representative of the decedent's estate. The purpose of the statute above is to make it clear that if a divorce has occurred, that person is no longer married to the decedent and no longer has these priorities as a beneficiary or two the appointed as the personal representative.

The next question that comes up is what happens if you do have a written estate plan including a last will and testament or a trust and you have named your ex-spouse in those documents and then become divorced. If you do not make changes to those documents and then you die, does your ex-spouse still have the ability to be an heir of your estate and to be named and appointed as the personal representative or trustee?

The good news is that the short answer is no. Again, Idaho statutes work to protect you from yourself if you become divorced and you have not made changes to your written estate plan to remove your ex-spouse. Idaho Code § 15-2-804(b)(1)(i), while a little convoluted, is designed to provide protection for you in this instance. This statute states that if you are divorced and in the process of that divorce you received a property settlement agreement or order from the divorce court, that document specifically revokes or removes any "[d]isposition or appointment of property made by a divorced individual to his or her former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse."

In other words, if you have a written last will and testament or a written trust and it names your ex-spouse as a beneficiary who will receive property, or as a personal representative or trustee who's responsible to carry out what you listed in your written document, the disposition of property and the appointment of the individual are revoked through the divorce. Essentially, this would mean that the courts would treat you or will as if your spouse had passed away before you and any gifts or appointments made in your written documents would simply move to the next individual listed.

All of the documents listed above have to do with the disposition of property and assets after you die. It also has to do with appointments made after you die. However, the same statute is designed to protect you while you are alive. If you were to become disabled through Alzheimer's disease or some other injury or illness, you are power of attorney becomes effective to protect you by naming someone who will do things for you that you normally do for yourself such as pay your bills, deal with your banks, handle your property, pay other creditors, and so forth. The same statute will remove an ex-spouse who is named to do these things for you while you are alive. This section of the statute is found in Idaho Code § 15-2-804(b)(1)(iii).

While the section of the statute listed above does not specifically reference powers of appointment it does indicate that if you have nominated an individual to work in any fiduciary a representative capacity it then names conservator, agent, or Guardian. These are the specific powers that are given through a general power of attorney. as a result, it appears that this section of Statute would also protect you with regards to your powers of appointment through a durable power of attorney, and a health care power of attorney.

Our experienced Estate Planning team of attorneys can help you and your family with your Idaho estate plan or with your probate needs. Whether you are seeking your own customized Estate Plan or need a Probate for a loved one who has passed, we are available to discuss your options and answer your questions at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation with the Racine Olson team. You can also email us directly at racine@racinelaw.net. We will answer your questions and will help you solve your Idaho Estate Planning and Probate problems.