How Does Your Divorce Affect Your Estate Plan?  


How Does Your Divorce Affect Your Estate Plan?  

Can you disinherit a spouse? Virginia law was changed this year to adjust a spouse’s “elective share” rights in Virginia under Code § 64.2-308.4.   Prior to the passage of this law, a surviving spouse could claim up to one-third of their deceased spouse’s “augmented estate” (a calculation that takes into account all of the various assets owned by the deceased, even outside of the items in the estate), even if the deceased spouse’s will disinherited the surviving spouse!  The new Virginia law increases this percentage up to half.  A surviving spouse can now claim up to 50% of the marital portion of the decedent’s augmented estate, even if there are children and other descendants involved. The percentage the surviving spouse can claim is based on the length of your marriage, with the longest time frame being a 15 year marriage, entitling you to the 50% surviving spouse elective share.

Divorces later in life are becoming more commonplace, as described in this New York Times article, which refers to them as "Silver Divorces."  Do you know how your divorce could affect your estate plan?  When you hire a family law attorney to assist with your divorce, consider that you may also need the assistance of an estate planning attorney to unravel the maze of your estate plan if you previously did all of your estate planning with your ex-spouse.  Similarly, if you are getting married later in life, you may want to think about how a prenuptial agreement and waiver of the elective share would affect your estate plan.

C&D is uniquely situated to help in this situation, with both a Family Law Department (Maryse Allen, Partner, and Krista Yancey, Associate), and an Estate Planning Department (Tom Duling, Partner, and Tim Aiken, Associate).  If you have an estate plan and are considering a marriage or a divorce, you may want to talk with one of our attorneys regarding any questions you may have about beneficiary designations (which are not changed by the divorce decree itself but must be changed with each institution individually).  Your jointly-titled assets and accounts with pay-on-death provisions may also be affected by a marriage or a divorce; in short, combining forces with both a family law attorney and an estate planning attorney can help you navigate the tricky areas where those legal areas overlap.

If you have questions about your marriage, your divorce, or your estate plan, feel free to contact us at (703) 583-6060 and ask for a joint consultation with our Family Law and Estate Planning attorneys.