PDA

View Full Version : Divorce, death, and estates



thethinker42
02-15-2009, 03:54 AM
If a couple is separated and going through the motions of a divorce, but it isn't finalized, and one of them dies, does the separation/divorce have any impact on the estate? In other words, would the surviving spouse still inherit the estate (assuming his will doesn't indicate otherwise) just as she would have had they not been going through a divorce?

(and no...she didn't kill him...)

jclarkdawe
02-15-2009, 04:01 AM
Depends upon state law.

I had a client who collected on a life insurance policy after the divorce, as the policy listed her by name and title (Jane Doe - wife) and the court decided the name mattered. A couple of years later New Hampshire changed the law so she would not have benefited.

Best of luck,

Jim Clark-Dawe

thethinker42
02-15-2009, 04:26 AM
I had a client who collected on a life insurance policy after the divorce, as the policy listed her by name and title (Jane Doe - wife) and the court decided the name mattered. A couple of years later New Hampshire changed the law so she would not have benefited.

I'm not quite as concerned with life insurance - he offs himself, so it's a moot point - but he's got a fairly large estate that his almost-ex-wife stands to inherit.

I've been looking into the state laws regarding this issue, but legalese is making my brain hurt this early in the morning. LOL

Palmfrond
02-15-2009, 05:08 AM
Why is life insurance moot? Usually there is an exclusion period (like 2 years) during which the policy won't cover death by suicide, but after that it will.

thethinker42
02-15-2009, 05:16 AM
Why is life insurance moot? Usually there is an exclusion period (like 2 years) during which the policy won't cover death by suicide, but after that it will.

Really? For some reason I thought life insurance didn't pay out on suicides. Duly noted. :D I'll have to do some digging and check that one out.

My main concern is his estate, but I'll look into the life insurance too...

HoraceJames
02-15-2009, 03:23 PM
Not a lawyer, but until the gavel's come down they're still married.

Important: is there a will? People can execute wills at different times in their lives, and the most recent one wins. (If sound mind, etc.)

Usually, the spouse becomes the executor of the estate unless someone is named.

SarahDavidson
02-16-2009, 01:06 AM
Which state are they in?

I spent 4 1/2 years doing title insurance, so I know a little bit of legalese surrounding community property stuff. I actually had a title that I did that was similar to what you're describing. It came in as a refinance (wife and her new boyfriend):

Husband and wife are mid-divorce, and he offs himself (.45 to the head). Wife continues to live in the property. Husband's probate is done, giving all of his estate to his PARENTS. (He'd had a will -- named parents as executors, they took everything.)

Wife still has an interest in the property, obviously. They bought it together. The question is -- did his interest pass to her, since Washington is a community property state, or did his parents inherit a half-interest in the property, leaving the wife with only a half?

We ended up having to negotiate with the deceased almost-ex husband's parents to get a quit-claim deed for the wife to refinance the property. They were absolutely livid. I, in my prim little office, got to listen to a couple of 50-somethings go off about "the horrible cunt who ruined our son's life and drove him to suicide." It was ugly.

Cyia
02-16-2009, 02:19 AM
Does the setting allow for a deathbed will? If he killed himself then he could have left a suicide note.

thethinker42
02-16-2009, 02:25 AM
They're in Washington state, ironically. He does not have a will indicating anyone else as an heir, so it sounds like it's a safe bet that the wife will inherit his estate.

Good to know - thanks for the info, everyone.

thethinker42
02-16-2009, 02:26 AM
Does the setting allow for a deathbed will? If he killed himself then he could have left a suicide note.

I was thinking about that, actually. I wasn't sure if a suicide note qualifies as "being of sound mind". How would that work if the note is in conflict with an existing will?

Cyia
02-16-2009, 02:41 AM
I was thinking about that, actually. I wasn't sure if a suicide note qualifies as "being of sound mind". How would that work if the note is in conflict with an existing will?

(FWIW -- from my uncle, who is not a lawyer but claims he's witnessed for one of these things.)

Some states have very old laws on the books that allow for deathbed wishes to supercede a will if the person is unable to reach their lawyer before death. It usually has to be witnessed by one or more parties who aren't the beneficiaries of the decision.

If the man was planning on killing himself, he could have gone to a notary in preparation and had a simple hand written note notarized stating I (name) with social security number (number) hereby leave everything I own to (person) with social security number (number) and dissolve the preceding legal document concerning (wife's name) with social security number (number).

In the case my uncle mentioned, there was no wife/widow involved, so community property laws may still take precedence.

thethinker42
02-16-2009, 02:55 AM
Good to know, thanks. :)

It's not going to be a super complicated situation - the only one who'd be fighting it is the would-have-been ex-husband's girlfriend. I just didn't want to say "wife, you're inheriting all of this" and have my readers saying "um, NO, I don't think so."

Thanks for the help everyone. :)

ideagirl
02-16-2009, 06:20 AM
Not a lawyer, but until the gavel's come down they're still married.

There's single, married, legally separated, and divorced. Those are your statuses (apart from widowed). You've got to check out state intestacy law to see what effect legal separation has (most likely it has an effect), and some states could consider "married but they filed for divorce" as the same as legal separation.

Your best bet for figuring this out is asking a law librarian, which means going to the library at the local law school (if there is one), or the local bar association's law library (if there is one), or calling the library at a law school or bar association in your state. Law librarians know a lot and can find out what they don't know quickly.

ideagirl
02-16-2009, 06:21 AM
I was thinking about that, actually. I wasn't sure if a suicide note qualifies as "being of sound mind". How would that work if the note is in conflict with an existing will?

Can I just ask, if he planned his suicide and you're considering having him leave a suicide note disposing of his property, why not just have him change his will? I mean, if he's planning in advance, why not plan that too?

jclarkdawe
02-16-2009, 06:29 AM
You might want to look at http://www.courts.wa.gov/library/?fa=library.ask and send them an email. Explain that you're an author and what you're looking for. Usually you can get a lot of help.

Best of luck,

Jim Clark-Dawe

thethinker42
02-16-2009, 06:30 AM
Can I just ask, if he planned his suicide and you're considering having him leave a suicide note disposing of his property, why not just have him change his will? I mean, if he's planning in advance, why not plan that too?

The character's planning amounts to writing the note minutes before he actually goes through with it...so, he doesn't take the time to do much more than that. He's anything but "of sound mind" at this point.

KikiteNeko
02-16-2009, 06:33 AM
Yes, the surviving spouse gets it. The court doesn't care if they're separated, unless the deceased left a will specifying who gets the estate, the spouse still gets it. The spouse also inherits the deceased's debt.

Although somehow when my dad died, my divorced mother got all his money and I got all his debt. Go figure.

Ol' Fashioned Girl
02-16-2009, 06:38 AM
Really? For some reason I thought life insurance didn't pay out on suicides. Duly noted. :D I'll have to do some digging and check that one out.

My main concern is his estate, but I'll look into the life insurance too...

Some life policies do have suicide exclusions. Some don't. Some have 'waiting periods'. And the one we had where we worked paid regardless - no waiting, no exclusion. You can do what you will with his life insurance. :)

ideagirl
02-16-2009, 10:19 PM
Yes, the surviving spouse gets it. The court doesn't care if they're separated, unless the deceased left a will specifying who gets the estate, the spouse still gets it. The spouse also inherits the deceased's debt.

See, this right here is evidence of the old adage, "A little knowledge is a dangerous thing." You make your statements so categorically, as if you were sure they're true--but what you're writing simply isn't true. God knows there may be some jurisdiction somewhere where all the above is true, but where is the OP's book set? That's what matters. Which is why I suggested that the OP contact a law librarian in her state. Short of contacting a lawyer, that's the only way she can find the answer to her question. (And BTW, contacting the right kind of lawyer--an estates and trusts lawyer--might be a good idea; people in many professions like being interviewed about their jobs by writers, so there may well be a lawyer in town willing to answer the OP's questions for free.)


Although somehow when my dad died, my divorced mother got all his money and I got all his debt. Go figure.

Notice how this result is not at all consistent with what you said above... It makes me wonder why you spoke with such confidence above, when you know from your own experience that it's not true.

Smish
02-16-2009, 10:36 PM
Totally depends on the state law in question. I know nothing of Washington state law, but in Kentucky, for example, mere separation doesn't affect a spouse's interest in the will. HOWEVER, a legal separation with a complete property settlement will be treated as waiver of rights to the will, and the will is read as though the spouse were dead.

SarahDavidson
02-16-2009, 10:40 PM
I should add --

In my example, the husband's probate (the court filing to disposition the will) didn't specifically describe the real property. It was very ambiguous. That was what raised the question, because it was just "the estate of so-and-so" with no legal description. Their attorney was a moron.

Title insurance is somewhat different from law, however. It's the "better safe than sorry" road that lenders take to prevent fraud and to avoid people coming back later going "but, but... I had an interest in that property!"