If you have a comprehensive estate plan in place then you already understand the importance of estate planning. The ultimate success, or failure, of your estate plan, however, will depend on how current it is. Often, an estate plan that has not been updated for over a decade causes more confusion and conflict when a decedent dies than dying intestate would have caused. When should you update your estate plan? Your estate plan should be reviewed every few years as a routine matter; however, certain life events also require a more immediate review and revision. For example, changing beneficiary designations after divorce is a crucial update that should not be overlooked, nor should you count on provisions in the Marital Settlement Agreement to make any necessary changes to your estate plan. Instead, make sure you sit down with your estate planning attorney before the divorce is even final to discuss what changes you will need to make in you estate plan as a result of the divorce.
When a married couple decides to end the marriage, the couple must decide how to divide all marital assets and debts, including retirement accounts, during the subsequent divorce proceedings. The resulting Marital Settlement Agreement may include provisions that purportedly release one spouse from any claim to the retirement benefits of the other spouse. The language may even specifically indicate that the beneficiary designation on the retirement accounts is thereafter changed. Like most people, you may then be under the impression that you do not need to do anything else. Your ex-spouse is no longer the beneficiary of your retirement accounts correct? Maybe, but maybe not!
What many divorcing couples do not realize is that a good number of retirement plans are governed by the Employee Retirement Income Security Act of 1974, or ERISA. AS such, those plans must follow specific rules and provisions, which will ultimately override the provisions in a Marital Settlement Agreement. In other words, if the retirement plan in question is governed by ERISA, it doesn’t matter what your divorce decree says with regard to beneficiary designations. Unless, and until, to remove your spouse’s name as a beneficiary your spouse will receive the account assets when you die. ERISA also overrides state laws that are designed to prevent ex-spouses from inheriting absent clear evidence that it was the intention of the decedent to leave the (now) ex-spouse as the beneficiary.
The lesson here should be clear – make sure you take the time to sit down with your Missouri estate planning attorney to review your existing estate plan and make any necessary changes immediately following a divorce.
If you have additional questions or concerns about when your estate plan should be reviewed, contact the experienced Missouri estate planning attorneys at Amen, Gantner & Capriano, Your Estate Matters, LLC by calling (314) 966-8077 to schedule an appointment.
- Staying Current is Especially Important in the Pandemic - November 17, 2020
- Staying Current is Especially Important in the Pandemic - October 1, 2020
- How Will You Age in Place and Be Able to Die at Home? - August 16, 2020