Making Your Estate Plans Extensions of Your Co-Parenting Agreement
For this post, I relied on the expertise of Nicole Quallen of Two Families Law. Two Families Law is a non-traditional, non-adversarial family law practice in Durham that works with separating families outside of court through collaborative divorce, mediation, and private agreements to settle your family matters with respect, empathy, and skilled conflict resolution (rather than inflammation).
The thought of creating even more legal documents while going through a divorce, as well as after a divorce, probably isn’t high on anyone’s list. But estate planning (wills, trusts, powers of attorney, etc.*) is something very important to consider, discuss, and take care of as a part of the divorce process - particularly if you are co-parenting children with someone to whom you are no longer married.
Why deal with estate planning now?
If you’ve never written your will: You may not know it, but the State of North Carolina (and every other state in the US) has a default process in the state laws to deal with what happens to your property if you die without a will. This is called intestate succession and if you die and haven’t remarried** - your property will go to your child(ren). That may what you’d choose anyway, but keep in mind that intestacy is a process controlled by the state legislature and managed by the local county courthouse. Put another way - it’s not quick or easy. And, if your children are minors - your property can’t go to them directly. It’s subject to the Uniform Transfers to Minors Act which requires the appointment of a custodian. Which means more court time and complications. Having a will in place may not result in a different outcome (although it could if you want it to!) but it can certainly make this process happen more quickly and with less stress for all involved.
If you wrote your will while married: Those pesky North Carolina laws are involved here too. After divorce - anything in your pre-divorce will that names or favors your ex-spouse is automatically invalidated even if your post-divorce intention is to keep some (or all) of that the same (but any other provisions or back-ups built into your document not involving your ex-spouse will stand). This automatic invalidation also applies to other estate planning documents like powers of attorney and trusts and generally is also true for beneficiary designations for life insurance, retirement, and pension plans (some exceptions do apply). Important note: this does not apply until the divorce is final (“absolute divorce”) so if you die during your separation, any document you have in place will be treated as if you were not separated.
What to do: make your estate plans extensions of your co-parenting agreements:
In your wills, consider including matching provisions to create testamentary trusts to benefit your minor child(ren) that either name each other as the Trustee, or name a mutually agreed-upon third party to serve as the Trustee.
Also in your wills, consider include matching provisions to nominate a guardian of your minor child(ren), naming a mutually agreed-upon third party. A great time to make this shared decision is during your divorce negotiations.
Review all beneficiary designations for life insurance, retirement, and pension plans. If you intend to have your co-parent (and now ex-spouse) continue to be the beneficiary, you’ll need to take pro-active steps post-divorce to ensure this can happen. Or, if that’s no longer appropriate, make the necessary updates to honor the financial agreements you and your co-parent have made for the benefit of your child(ren).
A Note on Timing: It may be best to finalize your divorce first, and then update your estate plans afterward. Ask both your divorce and estate planning attorneys for their recommendations on this, and be sure to have your Separation Agreement coordinate with your Estate Plan.
You’ve already done so much hard and important work to get to the point of being a respectful co-parent. Taking these steps is another way that you and your co-parent continue to care for and protect your child(ren) in the event very difficult circumstances.
Contact me to discuss how Ampersand Law can help ensure your estate plan reflects your co-parenting agreement.
*Estate planning term definitions here.
**If you remarry, intestate distributions are more complicated. If you have more children with your new spouse, they become even more complicated still! Want to know more? Contact me.