Divorce Need Not Ignite Estate Litigation, But Too Often It Does

From JD Supra:

Certain life events demand that estate planners work with client testators to adjust their estate plans. Divorce and remarriage are at the top of that list. When matrimony devolves into acrimony – setting the stage for expensive and counterproductive “scorched earth” litigation – everyone loses.

We strive here to give estate planners a look into what can spark expensive and protracted litigation, and how to avoid it. We offer background on relevant legal concepts, including revocation upon divorce, joint tenancy, ademption and abatement, and estate modification. Careful attention to these concepts and vigilance when a client’s circumstances change can save enormous headaches for estate lawyers and their clients down the line.

First, we urge planners to read “When Death and Divorce Collide” by Charles M. Riffle, Kathleen A. Durrans, and Melissa R. Karlsten (the “Death and Divorce authors”). Though published in 2005, the value of their analysis and insights endures. The authors explain – in the context of dividing assets – the tension between family court and probate court in California. The two court systems can differ substantively in how they answer important questions like these:

• When a spouse dies before a couple’s divorce is final, how is joint tenancy of real or personal property allocated?
• What are the reimbursement rights of a spouse who contributed property to acquire joint property during the marriage?
• How are pensions, profit sharing, or retirement plans distributed to either the surviving spouse or the heirs of the deceased spouse?

Read more here.