Divorced parents face a wide range of unique estate-planning problems. Understandably, the divorce itself usually eclipses any estate planning needs. Often divorced parents wait years after divorce, or even years after remarriage, before considering estate planning issues. As families become more complex and fluid, careful estate planning becomes more important. Proper estate planning can not only insure that your intent is fulfilled and your goals met, but can also avoid friction that might alienate family members.
You should be aware of certain issues which commonly arise with divorced parents and in “blended families”:
If the custodial parent dies or becomes incapacitated, the other spouse is usually entitled to custody, even if the children have a close relationship with the custodial parent’s new spouse. If one parent believes that the other should not have sole custody, advance planning is essential so that other family members are prepared to petition the court for guardianship in the event of the custodial parent’s death.In addition, if a deceased parent fails to name a “guardian of the estate” for any property left to a child, the surviving parent will normally be entitled to manage and control the money. Since many marriages fail because spouses do not agree about financial matters, many divorced parents prefer to nominate a different person as “guardian of the estate” to manage the children’s money.
2. Remarriage/New Spouse
As family relationships become more complex, it is important to consider how property should pass when one spouse dies. California’s intestate succession laws are often unsatisfactory. Frequently, a testamentary or intervivos can help provide for a surviving spouse while also assuring ultimate inheritance by the deceased spouse’s children from a prior marriage.
3. Insurance/Retirement Accounts
When reviewing insurance plans as part of the estate planning process, be sure to review your divorce decree. Your ex-spouse may retain rights to a retirement account, or the the divorce decree may require maintenance of life insurance payable to the ex-spouse or children.