Estate Planning with the 3 Ds: Death, Divorce and Disability

Often times, people come see their estate planning attorney, they execute the proper documents and proceed to lock those documents away in a filing cabinet or safe deposit box. In general, people are not active with their estate planning documents and do not realize that life events may have an impact on those documents and the clauses within them. Three of the most common life events that may change the effect of your estate planning documents are the 3Ds: death, divorce and disability.

If you have your estate planning documents together with your spouse, the 3 Ds could significantly change your documents. For example, if a couple divorces, it is generally treated as if either spouse predeceased the other and provisions leaving everything to their surviving spouse end up being void.

If two individuals have executed their estate planning documents before getting married and they have no prenuptial agreement in place, they could be looking at a lengthy and costly litigation. If a couple executes a health care surrogate or durable power of attorney naming someone other than their spouse as health care surrogate or attorney-in-fact and one of the individuals becomes incapacitated, the other spouse may not be able to make decisions for their disabled spouse because of previously executed documents.

The best way to protect yourself from paying for estate planning documents that do not have the desired result is to become pro-active with your estate planning. Before any of the 3Ds become an issue, make sure you are taking time to review your estate plan at least once a year, or whenever there is a big change in your life. These changes could include the birth of a family member, the acquisition of real estate or other property, divorce or death within the family, not necessarily your own, etc. It is essential to make sure you understand what you are signing and to know what happens when these life events occur.